JUDGMENT
Mishra, J.
1. Petitioner herein, who is the father of a minor girl Rukmani, has filed this petition alleging that the first respondent, who was a friend of his mother-in-law and thus an acquaintance, decided to have a girl of small age to attend to the household course at her brother’s house at Madras. Rukmani, then aged about nine years, was entrusted to the custody of the first respondent on 4-10-1989. According to the petitioner after Rukmani was entrusted to the first respondent and who took away Rukmani from his custody, in spite of repeated demands did not permit him to see his daughter. He has alleged.
“I submit that the first respondent had written a letter addressed to me on 19-9-1990 asking me to come over to Madras on 21-9-1990 regarding my minor daughter’s return of custody to me. Though I came over to Madras I could not contact the first respondent or any one else at the address furnished by her in the letter received by me and perforce returned disappointed.”
“In the meantime I contacted the first respondent many times and in spite of my best efforts to secure the recustody of my minor daughter I could not succeed. I respectfully submit that in this connection I also preferred a complaint on 2-11-1990 to the second respondent herein complaining about the conduct of the first respondent and seeking his aid to secure the custody of my minor daughter to me from the first respondent.”
Further alleging that he suspected that his minor daughter Rukmani was no longer alive, petitioner has said,
“In spite of all my earnest and sincere efforts I could not get back the custody of my minor daughter, Rukmani. I have no other efficacious alternative speedy remedy except to approach this Honourable court for the issue of writ of habeas corpus under Art. 226 of the Constitution of India.”
Second respondent received the complaint but took no action. So much so that he did not issue any receipt of the complaint to the petitioner.
2. When the petition was first heard for admission on 26-2-1991, a Bench of this court ordered.
“Let notices be issued to the respondents. Let a direction be issued to the first respondent to produce the petitioner’s daughter Rukmani, aged about 11 years in this court on the date fixed. Put up on 12-3-1991.” When the petition was eventually listed on 20-3-1991 before a Bench of this court, a new dimension was introduced by the production of a girl found in the custody of the first respondent by the second respondent, namely Sub-Inspector of Police, Thatha Iyengarpet. Musiri Taluk, Tiruchirapalli district, and identified by the first respondent as petitioner’s daughter. The girl Rukmani, who appeared to be aged about nine years only, however, did not identify the petitioner as her father. She stated in Court that her father’s name was Rathinam and he was a resident of Mangalam village in Musiri Taluk. She also stated that her mother was dead and that he had a brother and two sisters besides her father. Petitioner, however, disputed her identity and said that she was some other girl and not his daughter. Since a controversy arose as to the identification of the girl produced before this Court, the Bench ordered,
“To resolve the controversy as above, it is necessary in our opinion, to get an inquiry held into the truth or otherwise of the identification of the girl, by the petitioner on the one hand and the first respondent on the other. Until this controversy is resolved it will not be proper to allow the girl to live either with the petitioner or with the first respondent or for that matter in the custody of the police.”
We are informed that there is a Home for such children run by a Voluntary organisation in the City of Madras in the name of “Bala Mandhir, No. 126, G. N. Chetty Road, Madras.” We accordingly direct the second respondent to deliver the girl Rukmani in the said Home in the custody of the Superintendent/In-charge of the said Home, who in turn is directed to keep Rukmani in custody until further orders.”
3. To resolve the controversy as above, the Bench further ordered. We direct the Superintendent of Police, Tiruchirapalli, to forthwith depute an Officer not below the rank of the Dy. Superintendent of Police, to inquire about the minor daughter, Rukmani of the petitioner in village Mangalam so that her identity may be established as well as from the first respondent and other person in village Mettupalayam and send a report along with Statements/evidence, if any, in respect of the identity of the girl Rukmani, on or before the next hearing date fixed.”
“It shall be open to the Officer holding the inquiry to meet Rukmani and take her from the Home for the purpose of identification to village Mangalam as well as Mettupalayam and the officer-in-charge of the Home Bala Mandhir, shall permit him to take the girl for the purpose of inquiry on a written requisition made for the purpose. Immediately after the inquiry is over, the Officer holding the inquiry shall restore the child back to the home.”
4. The Dy. Superintendent of Police (Thiru A. Appuswamy) of Musiri Sub Division, Trichy District, has sent a report to this Court through the Public Prosecutor, High Court, Madras, stating that he took the girl from Bala Mandhir, Madras to village Mangalam as well as Mettupalayam, and
“I recorded statements of the following four persons of Mangalam village, 1. Venkatachalam 55/91, S/o Ramaswamy, 2. Maheswari 26/91 W/o Perumal, 3. Rangaswamy 67/91, S/o Veerappan, 4. Selvi 16/91, D/o Annavi and all the four persons told that the girl is not the daughter of the petitioner Rethinam. In addition to that, I made oral enquiry with the following eleven persons of Mangalam Village.
1. Shanmugam 50/91 S/o Palaniyandi Moopan
2. Perumal 32/91, S/o Arumugha Mudaliar.
3. Ponnambalam 49/91 S/o Veeramalai Muthuraja
4. Karuppannan 35/91 S/o Veerappan Muthuraja
5. M. Krishnan 31/91 S/o Muthan Arunathathiyar
6. Muthal 35/91 W/o Veeramalai Muthuraja
7. Balamani 30/91 W/o Perumal Mudaliar
8. Saroja 28/91 W/o Selvaraja Muthaliar
9. Nageswari 30/91 W/o Kumaresan Muthurja
10. Jegathambal 35/91 W/o Annavi
11. K. Ramamurthu 61/91, W/o Krishnan (Retd. Teacher) who also witnessed the girl at Mangalam. They all corroborated the witnesses stated above.”
“Then I took the girl to Mettupalayam Village where also the people gathered and saw the girl. I recorded the statement of the following three witnesses. 1. P. Natesan 60/91 S/o Palaniyandi. 2. Anthoniyammal 50/91 “D/o Samimuthu 3. Lakshmi 30/91 W/o Sengamalai, who told that the girl is not the daughter of the petitioner Rethinam and they further stated that they never seen that girl at Mettupalayam village earlier. Oral enquiry also has been made with the following 7 persons at Mettupalayam.
1. Arungam 70/91 S/o Veerappa Mudaliyar
2. Kandasamy 45/91 S/o Andiyyappa Muthaliyar
3. Vimala 409/91 W/o Ramamurthy Naidu
4. Jegathambal 28/91 W/o Marimuthu
5. Aachikannu 65/91 W/o Palaniyandi
6. Angammal 55/91 W/o P. Natesan
7. Sengamalai 45/91 S/o Palaniyandi and they all corroborated as the witnesses stated above.
Thiru A. Appuswamy also took the statement of the first respondent who stated that the girl was the daughter of the petitioner Rethinam and that the girl Rukmani, when taken to the house of the petitioner did not identify other daughters and son of the petitioner who in turn also did not identify the girl. In the 2nd Thiru Appuswamy has said.
“When questioned the girl whether she visited the places Mangalam and Muttupalayam earlier, she replied in negative.”
5. The above facts show that petitioners minor daughter Rukmani, aged about 9 years, was entrusted to the first respondent by him and that since such entrustment on 4-10-1989 Rukmani had/has been in the custody of the first respondent. A girl called Rukmani by the first respondent was brought before us but petitioner alleged that she was some other girl and not his daughter. The inquiry conducted under the order of this court by the Dy. Superintendent of Police has revealed that there is evidence to show that the girl produced before this court is not the daughter of the petitioner but some other girl leading to the only inference that the first respondent has substituted petitioner’s daughter Rukmani by some other girl aged about 9 years whom she has called Rukmani.
6. This, however, is the inference on the basis of the evidence that the Dy. Superintendent of Police, Musiri, Tiruchirapalli, Dist. collected, which has been seriously disputed by the first respondent. Petitioner, however, has failed to secure his girl return to his custody for, according to him the girl produced by the second respondent and identified as the daughter of the petitioner is some other girl and not his daughter. It is a case of minor girl entrusted to the custody of the first respondent by the petitioner who, if the facts aforementioned are true, has been removed to some unknown place or done away with.
7. Section 361 of the Indian Penal Code has defined kidnapping from lawful guardianship in these words :
“Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound, mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation :- The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other persons.
Exception :- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”
8. It thus declares that any person who takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, if said to kidnap such minor or person from lawful guardianship. While holding custody of Rukmani the first respondent had in a sense not committed the offence of kidnapping from lawful guardianship because petitioner himself had entrusted his daughter to her custody. But lawful guardianship of Rukmani, petitioner’s daughter, was that of the petitioner all through. So long as the first respondent kept the trust and in no manner betrayed the petitioner, there was no taking away of Rukmani out of the keeping of the lawful guardianship of the petitioner. When, however, petitioner demanded that custody of his daughter should be restored to him and the first respondent failed to discharge the trust by not returning Rukmani petitioner’s daughter, to petitioner’s custody, Rukmani was unlawfully taken out of the keeping of the lawful guardianship of the petitioner. Had the girl Rukmani produced before this court been identified by the petitioner as his daughter and accordingly lawful guardianship had been restored, everything would have come to an end. The girl produced before this court, however, has not been identified as the daughter of the petitioner. How a minor girl other than one entrusted by the petitioner to the first respondent has been found in the custody of the first respondent is a question that has not been answered before us. If the girl produced before us is not the daughter of the petitioner as we have indicated above, petitioner’s daughter has been kept out of the lawful guardianship of the petitioner without his consent. If whereabouts of the girl produced before us are not disclosed a serious suspicion arises as to the nature of the custody by the first respondent of the girl called Rukmani found by the second respondent and produced before us. Facts disclosed until now thus create serious apprehensions of kidnapping of a minor girl for unlawful purposes such as for being used for the purpose of begging, etc., forced or seduced to illegal intercourse or for being subjected to or disposed of as a slave, prostitutor etc. Since facts are shrouded with mystery and serious suspicious exist., it is a case in our opinion, in which the petitioner should be allowed to file a complaint/lodge information at the police of competent jurisdiction, and or in the court of a Magistrate of competent jurisdiction for action against the first respondent and any other person found connected with the kidnapping of his minor daughter Rukmani for the purposes indicated above.
9. This, however, will not dispose of the proceedings before us unless we take judicial notice of the fact that a girl Rukmani, aged about 9 years was produced before us by the second respondent after having been recovered from the custody of the first respondent and identified before us by the first respondent as the daughter of the petitioner. Petitioner, we have already noticed, disputed the identification of the girl and categorically stated that she was not his daughter. On the court’s direction to hold an inquiry a Deputy Superintendent of Policy has reported that the girl produced before us not the daughter of the petitioner. By identifying the girl produced before us as the daughter of the petitioner, the first respondent has evidently given false evidence with a view to mislead the court to believed that the girl produced was petitioner’s daughter. This conduct of the first respondent is one that immediately attracted sections 193, 196, 199 as Section 201 of the Indian Penal Code. These offences, however, are covered by Section 195 of the Code of Crl. Procedure, 1973, which states that no court shall take cognizance except on the complaint in writing of that court, or some other court to which that court is subordinate when such offence is alleged to have been committed in, or in relation to, any proceedings in any court. Section 340 of the Code of Crl. Procedure prescribed the procedure to be following for making a complaint for such offences. Pursuant to our order dated 20-3-1991 enquiry has already been conducted by the Dy. Superintendent of Police, Musiri Sub Division, Tiruchirappalli, Dist. and a report submitted. We have no reason to reject the said report at this stage. Thus, prima facie, it is established that the first respondent has committed such offences in a proceeding before this court for which a complaint should be filed. We cannot ignore this as a casual act or a mistake of fact on the part of the first respondent for, what she has done with respect to the identification of Rukmani before us has created more apprehensions than helping the court to reach a just and proper adjudication. We, for the said reason, direct the Addl. Registrar (Judicial) of our Registry to make a complaint against the first respondent before the Chief Metropolitan Magistrate, Madras City with a direction to proceed in accordance with law either himself or by transferring the case to any other Magistrate for trial.
10. We do not have any other course open to secure the custody of the petitioner’s daughter but to leave it open to the petitioner to file a complaint before the appropriate court or lodge information before the appropriate police station for action in accordance with law against the culprits/first respondent and others and in that process, to take all steps to ensure recovery of the petitioner’s daughter from the hands of the kidnappers. In case any such complaint is filed by the petitioner in the court of any information is lodged before the police, we hope and trust, due attention shall be given to the cause of the minor girl, who is the victim and prompt steps shall be taken so that the guilty are brought back and victim is recovered.
11. A destitute girl child called Rukmani by the first respondent is presently lodged in a home run by a Voluntary organisation. On 20-3-1991 we directed that she should be kept in the said home until further orders. The girl called Rukmani produced before us is not a delinquent juvenile. Since no person has claimed guardianship and a minor of her age cannot be allowed to live without a home, a court of law is duty bound to ensure that she is kept in a place of safety meaning any place or institution not being a police station or a jail, the person in charge of which is willing to receive and take care of the juvenile girl child until she attains majority. Section 9 of the Juvenile Justice Act, 1986 prescribes that the State Government may establish and maintain as many juvenile Homes as may be necessary for the reception of neglected juveniles, and where the State Govt. is of opinion that any institution other than a home established or maintained by it is fit for the reception of the neglected juveniles to be sent there under the said Act, it may certify such institution as a juvenile home for the purposes of the Act. It also states, “Every juvenile home to which a neglected juvenile is sent under this act shall not only provide the juvenile with accommodation, maintenance and facilities for education, vocational training and rehabitation, but also provide him with facilities for the development of his character and abilities and give him necessary training for protecting himself against moral danger of exploitation and shall also perform such other functions as may be prescribed to ensure all round growth and development of his personality”. The expressions ‘him’ and ‘his’ in this provision have to be read to include the feminine gender as well. Chapter III of the said Act propvides how neglected juveniles have to be protected, treated maintained, trained and rehabilitated. We do not have any information of many juvenile homes, particularly for a girl child established and maintained by the State Government although few such homes, we are told, have been established and are being maintained by the State Government. Bala Mandhir, to which the girl produced before us, has been presently lodged, we are informed at the Bar, is an organisation which takes care of neglected juveniles, provides them with accommodation, maintains them, provides them education and vocational training and rehabilitates them. They also protect such children against moral danger or exploitation and engage themselves to ensure all round growth and development of such children. We are also informed that they are willing and ready to keep the girl in their custody, maintain, educate and rehabilitate her and also give her vocational training so that after attaining majority the girl is not deficient in any respect and can live a life of her own. While we see under the provisions of the Juvenile Justice Act, 1986 a duty, cast upon the Govt. of the State to provide accommodation, education and vocational training to a neglected juvenile, we see no reason to withdraw the girl from Bala Mandhir. We accordingly order that the minor girl child called Rukmani by the first respondent and produced in this court, while be in Bala Mandhir, No. 126 G. N. Chetty Road, Madras, until she attains majority and further until such time she is fit to live on her own. The superintendent incharge of Bala Mandhir is directed accordingly to accommodate the said minor girl, maintain her, educate her and give vocational training to her in such trade that may in future help her for being rehabilitated. Any expenses needed for such accommodation, education, training and rehabilitation of the girl, however, can always be claimed from the State Government. The Management of Bala Mandhir shall accordingly be entitled to claim such expenses from the State Government. In case any such claim the girl.
12. In case, evidence of this girl is needed in any of the cases concerning kidnapping of the daughter of the petitioner of the false evidence in this court by the first respondent, the Superintendent/Incharge of Bala Mandhir, No. 126 G. N. Chetty St. Madras, shall, on such satisfactory arrangement that may be needed for the movement of the girl, comply with. With the directions as above, this petition is disposed of.
13. Order accordingly.