Childline India Foundation & Anr vs Alan John Waters & Ors

On 19.10.2001, the High Court passed an order for the protection of the children at Anchorage Shelter Homes. On 21.10.2001, one Shridhar Naik telephonically contacted Ms Maharukh Adenwala and informed her that the order of the High Court giving protection to the children was being misinterpreted by the police and, therefore, certain 3 clarifications were sought from the High Court and by order dated 22.10.2001, the High Court clarified the same.

(c) With regard to the sexual and physical abuse at the Anchorage Shelters, on 24.10.2001, Childline India Foundation filed a complaint with the Cuffe Parade Police Station and while lodging the said complaint, Ms. Maharukh Adenwala was also present there. In spite of the fact that a complaint had been lodged, the police did not take cognizance of the offence under the pretext that the matter was sub judice and was pending before the High Court. Since the matter was not being looked into by the police, Ms. Maharukh Adenwala recorded statements of some of the victims and informed the said fact to the Members of the Committee. On 28.10.2001, Dr. (Mrs.) Kalindi Muzumdar and Dr. (Mrs.) Asha Bajpai met those victims at the office of India Centre for Human Rights and Law and endorsed that the statements previously recorded by Ms. Maharukh Adenwala were correctly recorded.

After ascertaining the correctness of the statements by the Members of the Committee, the said facts were placed before the High Court and it was also submitted that the police 4 authorities at Cuffe Parade Police Station were not seriously pursuing the complaint. The High Court, by order dated 07.11.2001, directed the police authorities of the State of Maharashtra to take action on the basis of the complaint lodged by the Childline India Foundation.

(d) Based on this specific direction, Sr. Inspector of Police, Colaba Police Station was directed to investigate in detail the complaint lodged by Childline and to take such action as is required to be taken in law. On 12.11.2001, Colaba Police Station recorded the statement of one Sonu Raju Thakur and the statement of one Sunil Kadam (PW-1) was recorded by Murud police station on 13.11.2001. On 15.11.2001, police ultimately registered an offence at Colaba police station by treating the statement of Sonu Raju Thakur as formal First Information Report (in short `the FIR') being C.R. No. 312/2001 and started investigation.

5) Childline India Foundation is a project of the Ministry of Social Justice & Empowerment, Government of India and runs a 24 hrs. emergency phone helpline for children in distress. It was at their behest that investigation into the sexual and physical abuse of children at the Anchorage Shelters was initiated and F.I.R. No. 312 of 2001 was registered. When initially the police refused to record the statements of the victims, it was the Childline along with Ms. Maharukh Adenwala and others talked to the victims and recorded their statements and also produced them before the Committee.

6) Ms. Maharukh Adenwala has been a practicing advocate since 1985 litigating matters concerning social issues, including child rights. She has been appointed as Amicus Curiae in several child related cases by the Bombay High Court including suo motu Criminal Writ Petition No. 585 of 1985 about the plight of street children in Mumbai. She was involved in the present case since its inception and she brought the activities going-on at Anchorage Shelters to the notice of the Bombay High Court in the above said suo motu writ petition and obtained several orders and directions for the protection of the boys. She was examined before the trial Court as PW-2, especially to depose about the background of the case, how the complaint came to be filed and the various orders passed by the Bombay High Court in the abovesaid suo motu writ petition. Childline India Foundation and Ms. Maharukh Adenwala have been closely associated with the present case right from its inception. Childline India Foundation as a de facto complainant and intervenor and Ms. Maharukh Adenwala as PW-2.

7) In October, 2001, when it was brought to the notice of Ms. Maharukh Adenwala that some children living at the Anchorage Shelters had complained about sexual abuse, she immediately brought this to the notice of the High Court of Bombay and obtained necessary orders. She along with the representatives of Childline lodged a complaint at Cuffe Parade Police Station about the unlawful activities at Anchorage Shelters. Since the police officers of Cuffe Parade Police Station refused to investigate the said complaint under the pretext that the matter is sub judice and pending before the High Court, she recorded the statements of some of the victims and placed it before the High Court seeking direction for the police to investigate into the complaint filed by the Childline. By order dated 07.11.2001 passed by the High Court in suo motu Criminal W.P. No. 585 of 1985, the representatives of the Childline were permitted to visit the Anchorage Shelters to interview the boys and to submit a report before the High Court and seek police assistance, if any.

8) The other facts relating to these criminal appeals are that Duncan Alexander Grant (A3), a British national, in and around 1995 opened three Shelters called the Anchorage Shelters for the welfare of street children in Mumbai and its vicinity, namely, at Colaba, Cuffe Parade and Murud. Allan John Waters (A2), who was also a British national and a friend of Dunkan Alexander Grant (A3) used to visit the said Shelters regularly. Both of them were formerly working with the British Navy. Another accused William D'Souza (A-1) was the Manager of the Anchorage Shelters.

9) In January, 2001, Dr. (Mrs.) Kalindi Muzumdar, a Member of the Committee received complaints from organizations working in the field of child rights such as Childline, Saathi, CRY about the sexual exploitation of children residing in Anchorage Shelters and other children's institutions in Mumbai. She has been examined as PW-3. By letter dated 22.01.2001, she sought permission from the High Court to visit Anchorage Shelters and other institutions in 11 respect of which she had received complaints and permission was subsequently granted by the Division Bench of the High Court by its order dated 28.02.2001 in Suo Moto Criminal W.P. No. 585 of 1985. Accordingly, on 18.08.2001, the Members of the Committee including Justice H. Suresh who headed the said Committee, visited the Anchorage Shelters and submitted their reports to the High Court. These reports show that the atmosphere in the Shelters was unconducive for growing children, there was no education and health facilities, the management of the Shelters was unprofessional, the children were scared to go to the Murud Shelter, there were allegations of repeated beatings of the boys, the Shelters were not licensed and did not maintain children's records, nor proper accounts were maintained etc. Moreover, the said Report stated that, "There are unconfirmed reports of sexual abuse in the Shelters especially at Murud", and that "the Shelters, especially, the Murud Shelter should be investigated thoroughly for possibility of sexual abuse".

10) There is no doubt that when Cuffe Parade Police Station refused to investigate the matter, it was Ms. Maharukh 12 Adenwala and Ms. Meher Pestonjee who recorded the statements and supplementary statements of the minor boys, namely, Rasul Mohd. Sheikh, Sonu Thakur and Gopal Shrivastav, on 25th, 26th and 27th October, 2001. In their respective statements, the boys have spoken of the sexual abuse at the hands of (A2) and (A3) and physical abuse at the hands of (A1). The said statements also show that the boys had told (A1) about the sexual abuse, but he did not take any appropriate action to protect them. The complaint of the Childline is the basis of the FIR in this case. The written complaint dated 24.10.2001 submitted by the Childline to the Cuffe Parade Police Station and the boys' statements were brought to the notice of the High Court. On 07.11.2001, the High Court directed the police authorities of the State of Maharashtra to take immediate action on the complaint of Childline. Thereafter, the matter was investigated by Colaba Police Station and an offence was registered on 15.11.2001 being FIR No. C.R.No. 312 of 2001. In the course of the investigation, the police recorded the statements of five boys, who had suffered sexual abuse at the hands of (A2) and (A3) 13 and physical abuse at the hands of (A1). All the three accused were arrested at different times. The Colaba Police Station filed three separate charge sheets but the matters, viz., Sessions Case Nos. 87 of 2002, 886 of 2004 and 795 of 2005 were heard together by the trial Court and the accused persons were charged under Sections 377, 373, 372 and 323 IPC read with Sections 120-B and 109 IPC and Section 120-B IPC and Section 23 of the JJ Act.

11) The prosecution examined six witnesses, namely, two victim boys - Sunil Suresh Kadam as PW-1 & Kranti Abraham Londhe as PW-4, Ms. Maharukh Adenwala as PW-2, Ms. Kalindi Muzumdar as PW-3 and two Investigation Officers as PWs 5 & 6. The defence examined two witnesses, namely, Kiran Waman Salve as DW-1 and Rasul Mohd. Sheikh as DW-

About Allan Waters (A2), he deposed that "Allan Waters used to have sex with the boys. Allan used to have fellatio with me and the other boys. Allan used to take my penis in his mouth. He might have done this act with me on 30 to 40 occasions. When I was staying in Anchorage Duncan also did the same thing with me. Duncan did this act with me on many occasions. When this was done for the first time with me I felt bad. I then told the said fact to William with respect to the act done by Duncan and Allan.

However, as rightly observed by the trial Court for a limited purpose, namely, to corroborate the evidence of Ms. Maharukh Adenwala, the role played by Ms. Maharukh Adenwala (PW-2) and Mrs. Kalindi Mazmudar (PW-3) undoubtedly supported this case for taking the cause of vulnerable street children and they played their role in a responsible manner. Undoubtedly PW-3, like PW-2, had no enmity with the accused nor can any ulterior motive be attributed to them.

iii. "When this was done for the first time with me, I felt bad. I then told the said fact to William with respect to the act done by Duncan and Allan. Thereafter William beat me. I was beaten because I told William about the acts done by Duncan and Allan."

iv. "William used to tell me to speak before the Court that Allan and Duncan are good people."

Those statements show how these accused, particularly, A1 and A2, sexually abused the children at the shelter homes.

The way in which the children at all the three places i.e. 33 Colaba, Murud (Janjira) and Cuffe Parade were being used for sexual exploitation, it cannot be claimed that the ingredients of Section 377 have not been proved. The street children having no roof on the top, no proper food and no proper clothing used to accept the invitation to come to the shelter homes and became the prey of the sexual lust of the paedophilia. By reading all the entire testimony of PWs 1 and 4 coupled with the other materials even prior to the occurrence, it cannot be claimed that the prosecution has not established all the charges leveled against them. On the other hand, the analysis of the entire material clearly support the prosecution case and we agree with the conclusion arrived at by the trial Judge.

Constitutional provisions relating to children

26) The Directive Principles of State Policy embodied in the Constitution of India provides policy of protection of children with a self- imposing direction towards securing the health and strength of workers, particularly, to see that the children of tender age is not abused, nor they are forced by economic necessity to enter into avocations unsuited to their strength.

Virtually, Article 45 recognizes the importance of dignity and 36 personality of the child and directs the State to provide free and compulsory education for the children upto the age of 14 years.

This is being ensured by establishing observation homes, juvenile houses, juvenile homes or neglected juveniles and special homes for delinquent or neglected juveniles.

31) Under these circumstances, the impugned judgment of the High Court acquitting all the accused in respect of charges leveled against them is set aside and we restore the conviction and sentence passed by the trial Judge. It is brought to our notice that A1 has undergone imprisonment for 3 years and 1 month and A2 was in custody for about 5 years and A3 was in custody for about 3 years and 2 months. Inasmuch as the trial Court has imposed maximum sentence of 3 years for William D'Souza (A1) and he had already undergone 3 years and 1 month while confirming his conviction imposed by the trial Court, we clarify that there is no need for him to undergo further imprisonment. On the other hand, inasmuch as Allan John Waters (A2) and Duncan Alexander Grant (A3) were awarded 6 years imprisonment under Section 377 IPC while confirming their conviction, we direct them to serve the 38 remaining period of sentence. The trial Judge is directed to take appropriate steps to serve the remaining sentence and for payment of compensation amount, if not already paid. For the disbursement and other modalities, the directions of the trial Court shall be implemented. The appeals are allowed on the above terms.

MARCH 18, 2011.