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National Commission For … vs Rajesh Kumar on 13 January, 2020

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)

JUDGMENT

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

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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 This was repealed by the Juvenile Justice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

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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

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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

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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

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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

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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

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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

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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?

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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

into the violation of child rights. In Advanced Law Lexicon 1 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

1 3rd 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:­

“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;

(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

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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 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

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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

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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,

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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

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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 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

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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

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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

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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.

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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

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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

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