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जनहित याचिका क्रमांक डब्‍लू;पी/6523/2011 में माननीय न्‍यायालय के आदेश का पालन
02 October 2012
1 Writ petition No. 6523 of 2011(PIL) HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR ********************************************* (DIVISION BENCH : HON. SHRI S.K.GANGELE & HON. SHRI BRIJ KISHORE DUBE, JJ) [ WRIT PETITION NO. 6523 of 2011 (PIL)] Smt. Yashi Jain Vs. The State of Madhya Pradesh & Others Petitioner by : Smt. Ami Prabal and Shri Prabal Solanki, Advocates. Respondents-State by : Shri MPS Raghuvanshi, Additional Advocate General. O R D E R ( Passed on the 22nd March, 2012 ) (Whether approved for reporting) As per Shri Gangele, J : This pro bono publico petition has been filed in regard to child rights and also for issuance of directions to prevent female infanticide. The petitioner has also sought instructions for improvement in male - female child sex ratio. (2) The petitioner is a housewife and she has also been working in a private institution. She filed this petition in public (3) The petitioner pleaded that the girl child has not been given proper care and attention by the society. The mindset of the society has not been changed and discrimination against girl child still prevails in the society. There has been a decline in male-female child sex ratio. It was 964 female child : 1000 male child in 1961 in the State of Madhya Pradesh, however it came down to 912 female child :1000 male child in 2011. The Districts of Gwalior, Shivpuri, Sheopur, Morena, Bhind and Datia are major sufferers. Hence, it is necessary to take appropriate steps in this regard. (4) The State Government has not taken appropriate steps towards implementing the provisions of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [hereinafter referred to as “Act of 1994'''''''''''''''' ]. The petitioner has mentioned in the petition an incident of death of a female child. She was admitted at Kamla Raja Hospital, Gwalior on 07-09-2011. During investigation, it was found that a black coloured cloth was inserted in her throat deep up-to trachea. It was definitely an attempt to kill her. The black coloured cloth was taken out from her throat. However, it was not seized by the police. The girl child had been given back to the custody of mother and father and subsequently, the girl child was died. (5) This Court vide an interim order dated 29/9/2011, directed the Inspector General of Police (IGP) to conduct a proper inquiry. (6) An interim application [ I. A. No. 7109/2011] has also been filed by one, Ram Akhtyar Singh S/o. Shri Sardar Singh, resident of Kalpi Bridge Colony, Paththar Wali Gali, Kalpi Road, Gwalior. It is pleaded in the application that on 30th June, 2011, one Smt. Anita W/o Banti @ Suryabhan Singh gave birth to a girl child in the Community Health Centre, Gohad, District Bhind. Father and mother did not want the girl child. Hence, Smt. Anita was forcibly discharged from the hospital in the evening on same day and thereafter the girl child was killed and was buried out side the village Kharaua near old go-down in the morning of 1st July, 2011. After getting the information, the applicant informed the aforesaid incident to the Executive Magistrate (Tehsildar) Smt. Neena Gaur and SDOP, Shri Khare on telephone and thereafter, the applicant also met with SDOP, Gohad who had told the applicant to meet SHO Gohad, Police Station Gohad. Mr. Damodar Gupta, SHO, Gohad told the applicant to submit the report in writing. Then, the applicant submitted the report in writing and thereafter informed Mahila & Bal Vikas Vibhag. However, no action had been taken by the police. Contrary to this, the police informed accused Banti @ Suryabhan Singh and thereafter, accused Banti @ Suryabhan Singh and his family members had taken the girl child out of the grave and her body was destroyed. Later on, a case under Sections 302 and 201 of Indian Penal Code was registered vide Crime No.164/2011 against Banti @ Suryabhan Singh, Kamal and Banwar Singh at police station Gohad, District Bhind. However, no effective steps had been taken by the police to investigate the case properly. After the aforesaid incident, in the year 2011 four male and 28 female children were born in village Kharaua till date. (7) The petitioner also filed an application (I.A.No. 7126/2011) for taking additional facts on record. In the aforesaid application, the petitioner mentioned the fact about the death of two girl child, one in Sheopur and another in Alirajpur. The petitioner further pleaded that the police authorities have not investigated the cases properly. (8) The respondents/State authorities in their reply pleaded that the police had taken proper steps in regard to death of girl child and an enquiry had been conducted against In-charge, Station House Officer Mr. Mukesh Tiwari Police Station Kampoo, District Gwalior and Sub-Inspector, Ashok Kumar Sharma. A charge-sheet has been issued against both the police personnel. It is further submitted that a criminal case under Section 302 of IPC was registered against accused Ram Baran and Bhuri Baghel and they were arrested on 02-11-2011 and 04-11-2011. Grand-father, grandmother and uncles have also been arrested on 24-01-2012 and charge-sheet has also been filed. It is further stated that the Inspector General of Police (IGP), Gwalior issued general directions to all the police officers to take effective steps in the cases of death of girl child where a suspicion arises about the death of girl child. (9) The Parliament has enacted an Act, named as Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [ hereinafter referred to as “ Act of 1994'''''''''''''''' ]. The aim and object of the Act of 1994 is to prevent misuse of pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. (10) The Hon''''''''ble Apex Court in the case of Centre For Enquiry Into Health and Allied Themes (Cehat) and Others Vs. Union of India and Others, reported in (2001) 1 SCC 577, issues the following directions to the State Government:- “1. All the State Governments/ UT Administrations are directed to appoint by notification, fully empowered appropriate authorities at district and sub-district levels and also Advisory Committees to aid and advise the appropriate authorities in discharge of their functions ( re Section 17(5)]. For the Advisory Committee also, it is hoped that members of the said Committee as provided under Section 17(6)(d) should be such persons who can devote some time to work assigned to them. 2. All the State Governments/ UT Administrations are directed to publish a list of the appropriate authorities in print and electronic media in their respective States/ UTs. 3. All the State Governments/ UT Administrations are directed to create public awareness against the practice of prenatal determination of sex and female foeticide through advertisement in print and electronic media by hoardings and other appropriate means. (4) All the State Governments/ UT Administrations are directed to ensure that all State/ UT appropriate authorities furnish quarterly returns to CSB giving a report to the implementation and working of the Act. These returns should inter alia contain specific information about: (I) survey of bodies specified in Section 3 of the Act. (ii) registration of bodies specified in Section 3 of the Act; (iii) action taken against non-registered bodies operating in violation of Section 3 of the Act, inclusive of search and seizure of records; (iv) complaints received by the appropriate authorities under the Act and action taken pursuant thereto; (v) number and nature of awareness campaigns conducted and results flowing therefrom.” (11) The aforesaid Act of 1994 also provides registration of all bodies under the PNDT Act, namely, Registration of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics. It further provides maintenance of records by USG Centres Declaration on each report that he /she has neither detected nor disclosed the sex of foetus. Declaration of pregnant woman that she does not want to know sex of the foetus. Report to be sent by 5th of every month to appropriate authority. There are powers to the Appropriate Authority to cancel registration or renewal of registration of institutions, if the center is unrecognized. (12) The Union of India has also framed Rules under the Act, 1994, named as Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection), Rules 1996 [hereinafter referred to as ''''''''Rules of 1996”]. In accordance with the aforesaid Rules of 1996, it is necessary to sent information by every Sonography Centre or Clinic to the appropriate authority at once in every month and record has to be kept and maintained as a register in the custody of appropriate authority. (13) Section 17 of the Act of 1994 prescribes Appropriate Authority and Advisory Committee. As per Section 17 (5) of the Act of 1994, the Central Government or State Government shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in discharge of its functions. The relevant provisions of this Section are as under:- “(5) The Central Government or the State Government, as the case may be, shall constitute an Advisory committee for each Appropriate Authority to aid and advise the Appropriate Authority in discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman. (14) The Union of India also launched Integrated Child Development Services [ ICDS] Scheme on 2nd October, 1975. It is a programme for early child development and further the aim of Scheme is to prevent malnutrition, morbidity, reduced learning capacity and mortality. The followings are the main objectives of the ICDS Scheme:- “i. to improve the nutritional and health status of children in the age-group 0-6 years; ii. to lay the foundation for proper psychological, physical and social development of the child; iii. to reduce the incidence of mortality, morbidity, malnutrition and school dropout; iv. to achieve effective co-ordination of policy and implementation amongst the various departments to promote child development; and v. to enhance the capability of the mother to look after the normal health and nutritional needs of the child through proper nutrition and health education. The following services have been provided under the ICDS Scheme to fulfill the above objectives. '''''''''''''''' i. supplementary nutrition, ii. Immunization, iii. health check-up, iv. referral services, v. pre-school non-formal education and vi. Nutrition & health education. (15) Under the aforesaid Scheme, Anganwadi Centres have been sanctioned and Anganwadi Workers have been appointed by the State Government. The Central Government has also made budgetary allocation for the the aforesaid ICDS Scheme. As per the aims and objectives of ICDS Scheme, it has been launched for proper development of children. (16) The Hon''''''''ble Supreme Court in the case of People''''''''s Union For Civil Liberties Vs. Union of India and Others, reported in ( 2009) 16 SCC 598, has observed as under:- “ In respect of the Integrated Child Development Scheme, directions were issued on 28-11-2011. It seems that most of those who are covered by the said order are not getting benefit under the said Scheme. We have heard the submissions of Mr. Gonsalves and perused the report submitted by the Commissioners and the directions sought. From the facts and figures that have been furnished to us, it seems evident that there is a large number of malnourished children between the age group of 0 to 6 years. These figures are based on the survey conducted under the National Family Benefit Health Scheme. The position is quite alarming. These young children are the future of the nation. Further, it appears that except Kerala and Tamil Nadu where the benefit under the Scheme is said to be reaching to about 50% of the children, in the rest of the country the average seems to be below 25%. The position in the States of Bihar, Uttar Pradesh, Jharkhand and Uttaranchal seems to be quite alarming. According to the survey for the period 2002-2003 the access to supplementary nutrition for the children in Bihar reaches about 12.6% of those who are otherwise covered by the scheme. Mr. Raju Ramachandran, learned ASG prays for a short adjournment to discuss the matter with the officials concerned and make submissions on the directions that may be issued to ensure compliance with the order dated 28-11-2001. As prayed, the case is adjourned to 29-04-2004.” (17) In view of the aforesaid legal provisions, enactment and constitutional provisions, in our opinion, this public interest litigation filed by the petitioner is disposed of with the following directions:- (I) That in case of death of female child in womb it would be compulsory to all the nursing homes and Government Hospitals to inform the fact about the death of female child to the concerned Police Station. (II) If there is any suspicion about the death of female child then the Police Authorities shall investigate the matter properly under the supervision of Deputy Superintendent of Police and also submit the report to the Superintendent of Police concerned. (III) If any person informs the police concerned about the death of female child then the identity of such person be kept in secret and the police shall investigate the matter. (IV) A direction be also issued to all Anganwadi Workers to keep records about the abortion or death of female foetus and inform the same to the police authorities or other authorities concerned. (V) It is further directed that if in accordance with provisions of Section 17(5) of the Act of 1994, an Advisory Committee has not been constituted by the State Government for aid to Appropriate Authority, the said Committee shall be constituted. (VI) The Appropriate Authority shall ensure of receiving FORM H as per Rules of 1996 from all Diagnostic Centres or Clinics, having registration under the Act of 1994. (VII) The State Government shall also consider the development of proper mechanism in regard to submission of information by Sonography Centres through e-mail to the Appropriate Authority. (VIII) The Collector(s) shall supervise work of Integrated Child Development Services(ICDS) Scheme and shall ensure that the benefit under the aforesaid Scheme which is up-to 100% be reached to the children. (IX) The appropriate Government shall appoint Member(s) of Juvenile Justice Board in accordance with Section 4 of Juvenile Justice (Care & Protection of Children) Act, 2000 for each district within the jurisdiction of this Bench. (X) The respondents shall further appoint Child Welfare Committee in accordance with the provisions of Juvenile Justice (Care & Protection of Children) Act, 2000 for each district within the jurisdiction of this Bench. (XI) These directions would be applicable to the Districts which are under the jurisdiction of this Bench and the State Government shall issue appropriate circular or order to all the authorities of the Districts under the jurisdiction of this Bench. (XII) These directions shall be complied with within a period of eight weeks'''''''' from the date of this order and the Member Secretary, General Administration Department or any person(s) authorized by him shall file comprehensive affidavit in regard to compliance of these directions before the Principal Registrar of this Court within the period mentioned in this order. (18) Looking to the aforesaid facts and circumstances of the case, in our opinion, it would be just and proper to award proper cost to the petitioner. Hence, the petitioner shall be entitled to receive a cost of Rs.5,000/- (Rupees five thousand only) from the respondents. (19) With the aforesaid directions, the petition filed by the petitioner in public interest, is disposed of. (S.K.Gangele) (Brij Kishore Dube) Judge Judge mkb/-
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