Madhya Pradesh High Court Criticises NCPCR Head For Baseless Case Against Christian Missionary Over Adoption Of Children, Quashes FIR
The Jabalpur bench of Madhya Pradesh High Court last week quashed an FIR against christian missionary Dr. Ajai Lall accused of trafficking two children, who were earlier living in an orphanage run by a society of which he was the office bearer, and who were subsequently adopted following a family court order in 2017.
In doing so the High Court noted that the adoption of the children was "valid", and that the FIR did not suggest that the ingredients of the offence under Section 370 (Trafficking of person) of the Indian Penal Code were made out. It also said that as the competent court had examined each aspect pertaining to the children while passing the adoption order; therefore the status of the children can't be re-looked based on the "whims" of respondent chairperson of the National Commission for Protection of Child Rights (NCPCR) Priyank Kanoongo, the Court held.
A single judge bench of Justice Sanjay Dwivedi in its order said, "In view of the above discourse thereby appreciating the facts & circumstances; gleaned material by the prosecution and also the settled legal position, I am of the opinion that the prosecution of the petitioner (Lall) is sugarcoated with ill-intention and made to belittle his image in the society. In such circumstances, the prosecution cannot be allowed to continue".
No material to register Trafficking FIR, children were legally free
The High Court further said that there was no material available with the prosecution on the basis of which offence under Section 370 of IPC can be registered against Lall.
It said that the concerned Family Court had at the time of adoption had to consider the report of the Adoption Committee containing the history of the child and then opined that the "children are legally free".
It noted that the adoption committee had given an opinion that the children were "legally free" and that has been accepted by the competent court and "allowed the application for adoption" and this order was "never put to test".
"...therefore only because there emerged a doubt in the mind of respondent No.5, his action cannot be held justifiable. Ergo, no offence under Section 370 IPC is made out against the petitioner," the high court ruled. Respondent No. 5 in the plea is Kanoongo.
Lall had alleged Kanoongo, by "misusing his authority started pressurizing the statutory authorities"–District Magistrate, Superintendent of Police, Additional Superintendent of Police and the officers of the department of Women & Child Welfare for lodging an FIR against the former.
Section 80 JJ Act not made out, adoption order not challenged
With respect to the offence alleged against Lall under Section 80 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the High Court said that none of the ingredients of the section are available in the case. Section 80 pertains to punitive measures for adoption without following prescribed procedures, punishment under which is imprisonment of which may extend upto three years, or with fine of one lakh rupees, or both.
The High Court noted that unless the family court's adoption order passed in favour of the intervenors (adoptive parents) is questioned before the competent court of law and is set aside with a finding that a person or organisation had "violated" the 2015 Act, then only in that eventuality the proceedings consequent to FIR, "can be green-signaled".
"However, it is not alleged as to how Section 80 of Act, 2015 came into operation and what violation had been done before making the children available for adoption. Even otherwise, just to bring home the offence, the alleged violation that too after a long lapse of time, cannot be allowed to stand," Justice Dwivedi underscored.
Background
The order was passed in Lall's plea seeking quashing of a August 6 communication issued by the concerned Superintendent of Police for disclosing the details of the children who were orphans and were found in the orphanage run by the petitioner. Subsequently, an FIR was registered against under Section 370 IPC and Section 80 of the Juvenile Justice Act, quashing of which was also sought.
Lall said that he is the office bearer of 'Aadhaarshila Sansthan', a society which was running two institutions–an orphanage called Bal Bhawan registered under the 2015 Act, and a school–Central India Academy. Lall claimed that both these institutions stood closed–the orphanage was closed in 2023 and children were shifted on direction of the competent authority. The Academy has been closed since academic session 2023-24, he said.
The petitioner said that post-adoption report of the two children was sought based on the letters issued by NCPCR. The society replied to the same and furnished the information in January and March this year. However, the information was again sought by the concerned SP in August this year asking that under what circumstance, the children were first found in Bal Bhawan. The communication further sought for documents related to the date of birth and place of birth of the two children, the medical treatment taken by them etc.
Lall argued that seeking this information is "itself de hors" the 2015 Act as the provisions provide that every child has "right to protection of his privacy and confidentially and all past records of any child under the Juvenile Justice system should be erased except in special circumstances". Lall said that the two children were orphans and were found in the Orphanage "somewhere" in 2009-10 and "astoundingly" the information relating to 15 years back was sought at-once.
He alleged that Kanoongo used the social media platform to defame Lall and also to "mount pressure" over the statutory authorities.
The prosecution alleged that the FIR was registered mainly on the strength of allegation that the post follow-up report of the two children had not been filed or if filed did not have the correct information. It is alleged by the authorities that after post adoption, both the children were still found in Bal-Bhawan, but this information was never furnished. Conversely, Lall said that these children were not found in Bal-Bhawan, but found in the hostel of the school–Central India Academy.
Findings
Authorities violated children's right of privacy, disclosed names in their communication
Taking note of Section 3(xi) of the 2015 Act the high court observed, "Seemingly, the respondents have violated the aforesaid provision and anyhow have not protected the privacy and confidentiality of the children, conversely, they have disclosed the names of the children in their communication. Apparently, when the competent court of law i.e. Family Court considered the applications for seeking permission of adoption must have obtained NOC or opinion from the said agencies and also of the Central Agencies working for the interest of children whether the child can be given on adoption or not. It is but obvious that there was no objection raised by any such agencies or organisations for rejecting the applications of the interveners seeking adoption of the children and therefore the court found that the children were free from legal requirements and available for adoption and therefore allowed the applications".
The provision states that every child shall have a right to the protection of his privacy and confidentiality, by all means and throughout the judicial process.
Taking note of Adoption Regulations 2017 the High Court said that it was "amply clear" that the competent court was passed the adoption order after scrutinizing each and every aspect related to the children and once this order is passed, the "conduct and status of the child cannot be re-investigated on the whims of respondent No.5".
The High Court also said that once the children were found to be legally free by the competent court, they had come out of the definition of "orphan"; and if there was any infirmity in the procedure it could have been raised at the time when the adoption application was being considered. It said that once order is passed by family court after opinion from adoption committee there is no reason to revisit the past of the children.
It added, "Much to the surprise, when the children have never raised any objection about any exploitation or ill-treatment from anybody relating to the orphanage and also after adoption, the parents, then no question arises for respondent No.5 (Kanoongo) to discharge the obligation as has been provided under Section 109 of Act, 2015".
In view of these findings, the high court allowed Lall's plea and quashed the FIR.
Case title: Dr. Ajai Lall v/s State of Madhya Pradesh and Others