Arun Kumar Bhattacharya, J. - (1.) The hearing stems from an application under section 482 Cr.PC filed by the petitioners praying for quashing the proceeding being G. R. Case No.599/2003 arising out of Suri P. S. Case No. 193/2003 dated 24.11.2003 under sections 176/346/317/120B IPC read with sections 41/45 of the Juvenile Justice Act, 1986, pending in the Court of Id. Sub-Divisional Judicial Magistrate, Suri, Birbhum.
(2.) The circumstances leading to the above application are that petitioner No.1 is a Senior Medical Officer of Suri Sadar Hospital, while petitioner Nos. 2, 3 & 4 are President, Secretary and Treasurer respectively of a registered Non-Government Organization in the name of Aurobinda Anusilan Society which runs a Short Stay Home and Creche apart from its involvement in various welfare and voluntary social services. One Chanchal Kazi and Smt. Dipali Kazi approached petitioner No. 1 at his residence for abortion of Smt. Kazi as she was in her family way before marriage, and despite his initial refusal to abort as it exceeded the purview of M.T.P. law, the said Smt. Kazi ultimately gave birth to a male child in his emergency chamber in the name of Matrimongal Kendra on 04.06.2003. Though petitioner No.l pursued the couple, they abandoned the child on condition to take it back if it is approved by their family. On the request of petitioner No. 1, the said Society arranged for rearing up the child in the Short Stay Home. As per intention of District Magistrate, Birbhum, petitioner No.3 unsuccessfully requested by a letter dated 08.11.2003 to Smt. Ipsita Dey of Ananda Ashram, Beharampore, Murshidabad for taking charge of the child. Pursuant to an advertisement published by the Central Adoption Resource Agency, Ministry of Social Justice and Empowerment, Government of India, the said Society made an application for affiliation or registration for adoption of orphan or uncared for children.On 24.11.2003 at about 8.00 p.m. the District Social Welfare Officer lodged a complaint being registered as Suri P.S. Case No. 193/2003 dated 24.11.2003 under sections 176/346/317/120B IPC read with sections 41/45 of the Juvenile Justice Act, 1986 (G. R.Case No.599/2003) against seven accused persons including the four petitioners, parents of the child and Dr. Ranajit Kumar Bag, Vice-President of the Society alleging that during his visit of the Society on 14.11.2003 he found a male child which should have been brought to the notice of Child Welfare Committee through local P.S. or directly within 48 hours. Despite his request to the Society through a letter dated 14.11.2003 to place the baby before the Child Welfare Committee, Ananda Ashram Home for boys, Beharampore, Murshidabad it was not complied with, for which the child was recovered on the strength of a search warrant on that date and sent to the Child Welfare Committee. On the basis of an order of District Magistrate, Birbhum, on holding an enquiry on 21.11.2003 it was revealed that the N.G.O. was not registered as an Adoption Agency under the Central Adoption Resource Agency or licensed by the State Government under the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960 or any other Act or rules.
(3.) Mr. Basu, Id. Senior Counsel for the petitioners, advanced argument contending that the Juvenile Justice Act, 1986 was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 which came into force with effect from 01.04.2001, but there is no corresponding provision of section 41 and/or section 45 of the said Act of 1986 in the new Act. So far as the offence under section 176 IPC is concerned, Mr. Basu submitted that the said provision has no manner of application in this case as Child Welfare Committee, to which a written report with a photograph of the child under two years of age, as required under Rule 25(3) of the West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2003, is to be sent within 48 hours of admission excluding the journey time, cannot be held to be a public servant within the meaning of section 21 IPC. That apart, Mr. Basu contended that in view of the specific provision of clause (a)(i) of section 195(1) Cr. PC, investigation in the matter and submission of chargesheet, if any, will be a futile exercise of power as taking cognizance is absolutely barred in the absence of any complaint in writing of the concerned public servant. As regards the offence under section 346 IPC, Mr. Basu submitted that it does not apply in the present facts and circumstances, as the person is a child aged about five months. Mr. Basu incidentally submitted that in pursuance of an advertisement published in the newspaper "Telegraph" dated 03.03.2003 by the Central Adoption Resource Agency, Ministry of Social Justice & Empowerment, Government of India inviting applications from Social & Child Welfare Agencies for financial assistance for running Sishu Greh for promoting in-country adoption, the Society submitted a project proposal on adoption which was forwarded by the District Magistrate, Birbhum on 01.04.2003 to the Director of Social Welfare, Government of West Bengal for onward transmission to the Ministry of Social Justice & Empowerment. Mr. Basu further submitted that the offence under section 317 IPC is also inapplicable as it is not a case of abandonment of child by the petitioners, and as such there being no prima facie material in respect of any of the offences, the proceeding deserves to be quashed against the petitioners. Mr. Roy, ld. Counsel for the State, on the other hand, while frankly submitted that the offence under section 317 IPC is not applicable in this case as it does not involve abandonment of the child by the petitioners, he contended that sub-rule (3) of the said Rule 25 obligates the person or organization to send a written report along with photograph of the child within 48 hours of admission of the child excluding the journey period, and since the petitioners failed to comply with the said mandatory provision, they are liable to be prosecuted under section 176 Cr. PC. Mr. Roy further contended that as it is a case of wrongful confinement of the child in secret in the Short Stay Home of the Society it is an offence under section 346 IPC also. It was the further contention of Mr. Roy that non-mention of penal provision will not obliterate an offence nor will it absolve the offender if the fact discloses commission of such an offence, and in the present case since the Society does not possess any certificate, as required under section 13 of the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960, petitioner Nos. 2 to 4 at least are liable to be prosecuted under section 24 of the said Act.;