Supreme Court - Daily Orders
Nivedita Jha vs The State Of Bihar on 7 February, 2019
Bench: Chief Justice, Deepak Gupta, Sanjiv Khanna
SLP(C) 24978/2018
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ITEM NO.1 COURT NO.1 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No. 24978/2018
(Arising out of impugned final judgment and order dated 23-08-2018
in CWJC No. 12845/2018 passed by the High Court Of Judicature At
Patna)
NIVEDITA JHA Petitioner
VERSUS
STATE OF BIHAR & ORS. Respondents
(I.A. No. 127985 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT, I.A. No. 129416/2018 – PERMISSION TO FILE ADDL.
DOCUMENTS/FACTS/ANNEXURES and I.A. No. 128711/2018 – PERMISSION TO
FILE ADDL. DOCUMENTS/FACTS/ANNEXURES)
Date : 07-02-2019 This matter was called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK GUPTA
HON'BLE MR. JUSTICE SANJIV KHANNA
Ms. Aparna Bhat, Adv./A.C.
Mr. Joshit A. Pai, Adv.
For Petitioner
Mr. Shekhar Naphade, Sr. Adv.
Ms. Fauzia Shakil, Adv. (AOR)
For Respondents
Ms. Madhavi Divan, ASG
Mr. Anshuman Ashok, Adv. (AOR)
Mr. K.V. Vishwanathan, Sr. Adv.
Mr. Rahul Bhatia, Adv.
Ms. Nisha Bhambhani, Adv.
Ms. Lakshita Sethi, Adv.
Mr. A. Mukunda Rao, Adv.
Signature Not Verified
Digitally signed by
DEEPAK GUGLANI
Date: 2019.02.08
Mr. K. Raghavacharyulu, Adv./SPP
15:39:24 IST
Reason: Mr. Kailash Pandey, Adv.
Mr. Ranjeet Singh, Adv.
Ms. Arunima Pal, Adv.
Mr. J.K. Mishra, Adv.
Mr. Gaichangpou Gangmei, Adv. (AOR)
SLP(C) 24978/2018
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Mr. Gopal Singh, AOR
Mr. Manish Kumar, Adv.
Mr. Syed Mehdi Imam, Adv. (AOR)
Mr. Atif Suharwardy, Adv.
Mr. Tabrez Ahmad, Adv.
Ms. Shamama Anis, Adv.
Mr. Mohd. Parvez Dabas, Adv.
Mr. Uzmi Jameel Husain, Adv.
Mr. Abhishek Malhotra, Adv.
Mr. Atmaja Tripathy, Adv.
Ms. Sonam Gupta, Adv.
Mr. Pranjal Kishore, Adv.
Mr. M.P. Vinod, Adv. (AOR)
UPON hearing the counsel the Court made the following
O R D E R
Pursuant to the orders of this Court, dated 28.11.2018 and 12.12.2018, Status Report No. 6 in respect of the Muzaffarpur case has been submitted in a sealed cover. We have perused the same and heard the learned Amicus Curiae and learned counsel for the Central Bureau of Investigation (C.B.I.), who has submitted that the chargesheet (No. 2/2018) in Regular Case No. RC0922018S0001 dated 28.7.2018 has been filed on 19.12.2018. A copy of the chargesheet has been placed before the Court. We have perused the same. Learned counsel for the C.B.I. has submitted that all the requisite papers have been furnished to all the accused who are presently in custody.
All that we would like to observe, at this stage, is that as the chargesheet has been filed, the trial should commence immediately and conclude as expeditiously as possible.
Having regard to the totality of the facts of the case and considering the prayer of the C.B.I. that the trial should be held in Patna and not in Muzzafarpur, SLP(C) 24978/2018 3 we are inclined to take the view that it would be in the interest of justice to transfer the trial of Regular Case No. RC0922018S0001 registered on the basis of FIR No. RC0922018S0001 (RC1(S)/2018/CBI/SCB/PATNA) dated 28.7.2018 pending before the 1st Additional District & Sessions Judge-cum-Special Court of POCSO Act, Muzaffarpur to the POCSO Court in the District Courts, Saket, New Delhi. The District Judge of the Saket District Courts will transfer the case to the competent POCSO Court, if there are more than one of such Courts in the Saket District Courts. We direct the transfer alongwith the records to be completed within two weeks from today and the trial to commence thereafter. We further direct the trial Court to complete the trial within six months from the date of commencement thereof, with the clear direction that the learned trial judge will not seek any extension of time beyond the period of six months, as stipulated.
We leave it to the discretion of the learned trial judge to consider use of Video Conferencing facilities for examination of witnesses and all other incidental purposes in the course of the trial.
A copy of the chargesheet placed before the Court by the learned counsel for the C.B.I. be kept on record.
We further direct the Government of the State of Bihar to extend full support and cooperation to the authorities of the C.B.I. to ensure that the case records are duly transferred; witnesses are made available on time and all other steps that may be required to comply with the time frame stipulated in the present order are taken.
We have perused the second Status Report filed by the C.B.I. in the case of 16 other shelter homes in the SLP(C) 24978/2018 4 State of Bihar, which was directed to be investigated by the order of this Court dated 28.11.2018.
All that we would like to say at this stage is that the investigation(s) which is/are stated to be going on shall be carried out in the right earnest and the C.B.I. while investigating what had happened and what is happening in the State shelter homes, shall keep all perspectives in mind and would also, if required, take the assistance of the experts of National Institute of Mental Health and Neuro Sciences (NIMHANS) and Tata Institute of Social Sciences (TISS) to interact with the inmates of the shelter homes, so that full and complete information can be had by the investigating agency so as to satisfactorily conclude the investigation.
List the matter with regard to the 16 other shelter homes alongwith the Muzaffarpur case after submission of the report by the C.B.I. at the end of three months from today.
Post-lunch In the morning session, two matters were kept for consideration in the post-lunch session. The first is with regard to the transfer of Mr. A.K. Sharma, Joint Director, C.B.I., who was in charge of the investigation of the case pertaining to the Muzaffarpur shelter home.
On 31.10.2018, this Court had passed the following order insofar as the continuation of Mr. A.K. Sharma as the senior most officer of the investigating team is concerned:-
“It is stated and clarified that Shri A.K. SLP(C) 24978/2018 5 Sharma will continue to be the senior-most officer as a part of the investigating team in terms of the directions given by the Director of CBI on 31.08.2018.” On 28.11.2018, this Court had passed further directions in the same matter i.e. transfer of Mr. A.K. Sharma, Joint Director, C.B.I., to the following effect:-
“We also make it clear that the officers of the CBI who will be looking into these allegations and conducting investigations will not be transferred without the leave of this Court.
It is submitted by learned Special Public Prosecutor, on instructions, that since the scope of the inquiry and investigations is being expanded, the existing team will also need to be enlarged. We grant permission to the Director, In-charge of the CBI, to expand the team but we make it absolutely clear that Mr. A.K. Sharma, Additional Director, In-Charge of the investigations will continue to remain the In- charge of the investigations and the expanded team including the new members will report to him directly.” It appears that by an order dt. 17.1.2019, on the approval of the Appointments Committee of the Cabinet amongst others, Mr. A.K. Sharma’s tenure in the C.B.I. had been curtailed and by an office memorandum of the same date issued by the Under Secretary to the Government of India, Ministry of Home Affairs, Mr. A.K. Sharma, Joint Director, C.B.I. has been appointed as the Additional Director General in the Central Reserve Police Force (C.R.P.F.). The said facts have been placed before us in the Status Report, dated 31.1.2019, filed on behalf of the C.B.I. in the shelter home cases of the State of Bihar under the heading “Investigating Team”.
In the morning session, we had directed the competent authority to file an affidavit to apprise SLP(C) 24978/2018 6 this Court whether the Appointments Committee of the Cabinet, before its approval to curtail the tenure of Mr. A.K. Sharma in the C.B.I., was apprised of the orders of this Court, dated 31.10.2018 and 28.11.2018. The affidavit, as directed, has been filed by one Mr. Devender Singh, Superintendent of Police, C.B.I., SCB, Patna, who coincidentally happened to be present in the Court in connection with the present proceedings. On being asked, Mr. Devender Singh has informed that he had been orally instructed to file this affidavit by one Mr. M. Nageshwar Rao, Additional Director, C.B.I. We do not think Mr. Devender Singh, Superintendent of Police, C.B.I., SCB, Patna is the competent authority to swear the affidavit, keeping in mind the purpose for which the Court had desired the information to be placed before the Court in the form of an affidavit.
Alongwith the affidavit of Mr. Devender Singh, an extract from the notes in the file has been enclosed, which shows what had happened on 18.1.2019 i.e. after the transfer of Mr. A.K. Sharma as the Additional Director General, C.R.P.F. was made on 17.1.2019. The note of one Mr. Bhasuran S., Additional Legal Advisor and In-Charge Director of Prosecution, C.B.I. runs as follows:-
“A perusal of the order dated 17.1.2019 of MHA it is seen that Sh. Arun Kumar Sharma IPS has been appointed as ADGP in CRPF in the level 15 of the Pay Matrix which it appears that one level higher than the present post. The Hon’ble Supreme Court in the Shelter Home Case has ordered Sh. Arun Kumar Sharma IPS shall supervise the case. In view of the fact that the above order is a beneficial order to Sh. A.K. Sharma IPS, there may not be any legal impediment to relieve the officer. We may bring this fact to the notice of the Hon’ble Supreme Court by way of an affidavit in the concerned cases, the facts and circumstances under which the officer was relieved and get an approval from the Hon’ble SLP(C) 24978/2018 7 Supreme Court.” This has been approved on the same date i.e. 18.1.2019 under the signature of an officer, who is stated to be of the then In-Charge Director, C.B.I. -
Mr. M. Nageshwar Rao. From the aforesaid notesheet and the approval thereto, it does not appear that the Appointments Committee of the Cabinet was apprised of the orders of this Court, dated 31.10.2018 and 28.11.2018 before it took the decision to curtail the tenure of Mr. A.K. Sharma in the C.B.I.. Neither approval of this Court, as suggested in the note, was taken nor could it have been taken, as, on 18.1.2019, when the note was signed and approved, the order of transfer had already been made and implemented. No prior leave of the Court was taken as stipulated in the order dated 28.11.2018.
In these circumstances, we are of the prima facie view that Mr. Bhasuran S., Additional Legal Advisor and In-Charge Director of Prosecution, C.B.I. and Mr. M. Nageshwar Rao, the then In-Charge Director, C.B.I. (now Additional Director, C.B.I.) have committed contempt of Court. All officers of the C.B.I., who had processed the file and had issued the orders of transfer on 17.1.2019, prima facie are also guilty of contempt. We direct the present Director, C.B.I. to inform the Court who are these persons who were associated in one way or the other leading to the issuance of the order dated 17.1.2019 transferring Mr. A.K. Sharma to the C.R.P.F. Information and replies will be laid before this Court on 11.2.2019 and the matter will be heard by the Court on 12.2.2019. Both, Mr. Bhasuran S. and Mr. M. Nageshwar Rao and all other persons, who may have been identified by the present Director, C.B.I. to be associated in passing of the order dated 17.1.2019, SLP(C) 24978/2018 8 shall also appear in person before the Court.
Insofar as the second matter pertaining to shelter homes in the State of Bihar is concerned, the information sought for by the Court in the pre-lunch session has been furnished by the learned standing counsel in a typed unsigned note. The same would go to show that as on today, the number of Child Care Institutions that are functioning in the State of Bihar are 86 in number and the total number of inmates therein is 2360. We have also been given to understand that the Child Care Institutions are managed under the Integrated Child Protection Scheme, which is a centrally sponsored scheme of the Government of India and the budget is shared between the Central Government and the State Government in the ratio of 60:40 and where N.G.Os. are involved, the ratio changes to 60:30:10. We have also been given to understand that for the food, maintenance, clothing, medicines etc., a total of Rs.2,000/- per month per child is the allocated amount and that there is a constant and continuous effort to reunite the children with their families apart from providing them with education and recreational and sport facilities. We are also informed that 44 young girls have been transferred from the Children’s Home for Girls, Muzaffarpur in the following manner:-
Sl. No. Type of Child Care Institutions No. of Girls 1. Children’s Home for girls, Mokama 28 2. Children’s Home for girls, Madhubani 06
3. Children’s Home for girls, Patna (Asha Kiran) 03 4. Uttar Raksha Grih, Patna 02
5. Restored to their families by the order of the 04 CWC SLP(C) 24978/2018 9 6. Ran away from Madhubani Home 01 Total 44 As this Court in another connected proceedings (M.A. No. 2069/2018 in W.P.(C) No. 473/2005) is monitoring the management and running of these Child Care Institutions, inter alia in the State of Bihar, we do not think any order at this stage would be called for in the present proceedings. Rather the typed reports placed before the Court by the learned standing counsel for the State of Bihar with regard to the number of the Child Care Institutions etc., as indicated above, be placed on the record of M.A. No. 2069/2018 in W.P.(C) No. 473/2005 and such orders, as may be appropriate, will be passed in the said case.
(Deepak Guglani) (Anand Prakash)
Court Master Court Master