Per ELIPE DHARMA RAO, J.
This petition has been filed by the mother of a boy of ten years, who is visually and mentally handicapped and who is said to be missing while he was in the custody of the third respondent school.
2. In her affidavit, the petitioner has submitted that they have admitted their son Rajesh, who is visually handicapped and also 5% mentally retarded, in the third respondent School on 25.6.2008. She has further submitted that during day time, their son will be able to see the things, but during nights he cannot see, but during nights he can walk if there is light; that though her son studied upto 5th standard in Anmaruthai School, he cannot read and write, but can very well speak. She has further submitted that due to the deficiency in the sight, they have admitted their son in the third respondent/blinds school, but the school authorities did not give any admission receipt for them and after one month from the date of admission, the school authorities informed them over phone that their son is missing and when they went and enquired the school authorities, they have replied that they did not admit the boy in the school. It has also been submitted that in spite of their search in the nearby villages, they could not trace out their son and when they further enquired the school authorities as to why they have not admitted their son even after one month time, they have replied that they thought of giving admission to the boy only after assessing his condition. It is further submitted that they have lodged the complaint on 25.7.2008 at 5.00 p.m. with the second respondent Police and till time no fruitful result has emanated from the second respondent police.
3. It has also been submitted on the part of the petitioner that their son is 5% mentally retarded, but school authorities asked them to get certificate of 50% of mental retardation and the school authorities did not give back the original school transfer certificate and medical certificate of the child. It has also been submitted that two years back one boy studying in the school was forced to have homo-sex by the Fathers and later he was murdered and therefore they are afraid that same thing must have happened to their son in the school. In spite of requests, the school authorities did not tell them anything about the missing boy; that the complaint given by them was not registered by the police and no FIR was also registered and the police called the school authorities and asked them to give complaint and register the FIR with intention to help the school authorities to escape from the crime and in the normal school run by the same school authorities 'boy missing' cases are taking place frequently and therefore, they have come forward to file this petition. After filing of this habeas corpus petition, the petitioner has also filed M.P.1 of 2009 praying to direct the third respondent to pay a compensation of Rs.15 lakhs to her for the loss of her son.
4. The Inspector of Police Chetpet Police Station, Tiruvannamalai District, who is the second respondent in this case, has filed a counter affidavit wherein they have stated that based on the complaint lodged by the third respondent school, a case in Cr.No.250 of 2008 was registered by them for 'boy missing' on 30.7.2008 at 5.00 p.m. and they have prepared intimation regarding the particulars of the missing boy along with his photograph and sent the intimation with a copy of the FIR to about 110 blind/mental health homes which are situated in the State of Tamil Nadu and replies from only a few institutions have been received and they are awaiting the replies from the other institutions and that special teams have been formed to trace out the missing boy and as soon as he is traced, necessary steps will be taken in accordance with law.
5. The third respondent has filed a counter affidavit, wherein they have denied that the son of the petitioner is partially, visually handicapped and admitted into their institution and they have also denied that the said boy A.Rajesh is only 5% mentally retarded. It was further submitted that though the said boy was not at all granted admission, he was under the care of the institution till his admission, which was not materialized because of want of certain documents/testimonials; that when the boy was not found from their premises, it was duly informed to the petitioner and a complaint was lodged with the 2nd respondent, which was registered as Cr.No.250 of 2008, dated 30.7.2008; that on coming to know about the boy's absence, the fact was immediately informed to nearly 110 similar institutions for their assistance in the matter and widely published in dailies to get public assistance too; that though the petitioner has stated that the boy was 5% mentally retarded, the fact remains otherwise that he was certified as 55% mentally retarded and if this factor was informed to the administration at that relevant point of time, the boy would have been advised to be with their parents because the 3rd respondent institution is meant only for blinds/visually handicapped; that the fact of 55% mental retardness has been duly certified and the fact remains like that it creates a suspicion that why the petitioner did not produce the same and why she did not reply for the requirement of 50% if any and this conduct forms part of suppression of material facts to the institution and to this Court; that as far as the allegations of earlier alleged incident of homo-sex and murder are concerned, they are in no way connected with the institution or with the administration and though the said incident took place in another institution, the guilty viz. Senbagamoorthy, who was identified as one of the teachers, has been convicted with life imprisonment and hence those allegations cannot be taken into consideration in this case.
6. After the counter affidavit of the third respondent having been filed, the petitioner has filed an additional affidavit narrating the circumstances under which they have admitted their son in the third respondent school, for which a reply counter has been filed by the third respondent wherein they have stated that a complaint was preferred regarding the missing of Rajesh and they have rendered their full cooperation with the second respondent police and also given wide publicity in the daily newspapers; that they have informed more than 110 institutions started in various places throughout Tamil Nadu and neighbouring States; that their institution is functioning in the very same place for more than 29 years without any complaint or any adverse opinion, but earned much reputation, goodwill and confidence among the people by and large; that their institution is meant only for the blind students and they admit blind students, who are having complaint of more than 50% disability of blindness on proper certification and they are strictly adopting the guidelines and instructions issued by the Government without fail; that the institution is not for mentally retarded and only for blind students and they are the only institution in the entire district of Thiruvannamalai to cater to the needs of such students with the gifts/donations collected and granted to the institution by way of charitable activity and the activities of the institution themselves are the acts of charity; that the conduct of expecting compensation itself reveals the intention of the petitioner and in fact, the petitioner ought to have shown her intention to trace/find the boy and to take care of him and the stand taken by the petitioner is contrary to the interest of the boy and with a malafide intention to defame, damage the reputation of the institution as well the reason best known to her; that in any event, if any compensation is awarded as a measure of punishment, it would possibly be set a precedent and demoralize the charitable activity of the institution ; that since the institution is running under charitable trust, it does not have such a huge money and further trust is run by the Trustee only on charitable donations which includes even materials like clothes, old books, used articles etc. and the Trust itself is in need of money to run the institution in future and the claim of compensation of Rs.15lakhs is claimed only against the interest of the institution and in particular, interest of the blind students; that the said claim is highly unwarranted and this respondent is in no way liable to pay any compensation, since the institution does not commit any mistake or in no way connected with the alleged incident.
7. On a thorough study of the entire materials placed on record, it is seen that the third respondent school has to admit the blind students with more than 50% visual defect. Though the missing boy Rajesh was only 5% visually handicapped, the petitioner and her husband have obtained a medical certificate from a Doctor, according to them at the advice of the school authorities themselves, that he is 55% visually handicapped so as to get admission into the third respondent school. Though in the first counter filed by the third respondent at Para No.2, they have denied that the missing boy Rajesh was admitted into their school, subsequently from the additional counter affidavit filed by them and even from the other averments made in the counter affidavit filed by them and also the averments in the complaint lodged by them, it has been made out that without giving any official admission, the boy was admitted into the school under the pretext that they have to watch the boy for certain period of time to decide on the point of his admission and a month has gone by. While so, on 25.7.2008 at about 5.30 a.m., when the payer assembly was being conducted, the school authorities have found that the boy is missing and they have informed the same to the parents of the boy over phone at around 7.00 a.m. Five days thereafter, the school Correspondent had lodged a complaint with the second respondent police and the same is still under investigation.
8. No doubt, the missing boy is a mentally retorted person, with defect in vision, whatever may be the percentage of defect. Even according to the school management, the boy could not even attend the calls of nature on his own during night times and somebody must accompany him.
9. From the entire materials placed on record, there is no doubt that at the relevant time of missing, the boy was in the care and custody of the third respondent school and hence they are answerable for the missing of the boy. On the complaint lodged by the third respondent, the second respondent has commenced the investigation and the case was registered in Cr.No.250/2008 on 30.7.2008. We are totally dissatisfied with the manner in which the investigation is conducted in this case, wherein a mentally retarded boy is missing and the anguish of the parents has not been given proper attention by the second respondent Police, except saying in the very usual manner that they have formed special teams, without even naming as to how many teams they have framed and who are all heading those teams and what has been achieved by the so-called special teams till date. The casual manner in which the matter has been dealt with by the second respondent has very much disturbed us. No status report has ever been submitted before this Court by the second respondent, even though the case was undergoing so many adjournments.
10. With great concern about the safety and security of the missing boy and taking into consideration the casual and callous nature in which the investigation is being conducted by the second respondent, we feel it fit to transfer the investigation of the case in Cr.No.250 of 2008 to the Superintendent of Police, CBCID, Chennai to immediately take up the investigation in the matter and take all the steps necessary to secure the presence of the missing boy and produce him before this court at the earliest, preferably within three months from today. The first respondent/The Superintendent of Police, Tiruvannamalai is directed to monitor the smooth transfer of the case in Cr.No.250 of 2008 from the third respondent police to the CBCID, Chennai within one week from today.
11. Then coming to the aspect of compensation of Rs.15 lakhs claimed by the petitioner from the third respondent School, in order to ascertain the financial capacity of the third respondent school, we have directed the second respondent Inspector of Police to investigate into the aspect of the financial capacity of the third respondent school and file a report before this Court. Accordingly, he has filed his report, wherein he has stated that during his enquiry he found that M/s.Dasarathan and Co., Chartered accountants, Trichy are the Auditors for the third respondent school and he contacted them and obtained a copy of the Receipts and Payments Accounts for the year ended 31.3.2008 and from the Audit Report, it is learnt that the total receipts for the financial year ended on 31.3.2008 was Rs.12,73,059.14 and the money was spent mostly on staff salary, building repairs, Braile computer materials, food maintenance, laboratory materials etc. and the cash on hand is found to be Rs.293/= and the cash balance at the Bank is Rs.1579/=. He has submitted the copy of the audit report before this Court.
12. Since as has already been observed supra, there cannot be any doubt that the boy was missing only when he was in the care and custody of the third respondent school and thus, the third respondent school would become answerable for the missing of the boy.
13. Considering all the facts and circumstances of the case including the mental agony suffered by the petitioner and her husband all these days and also the financial capacity of the third respondent school and in view of the change of investigation by this Court to CBCID, we deem it fit and proper to order an interim compensation of Rs.50,000/= (Rupees Fifty Thousand Only) to be paid by the third respondent school to the petitioner within four weeks from today.
The Superintendent of Police, CBCID is directed to trace out the missing boy and produce him before this Court with a report before this Court at the earliest, preferably within three months from today.
Post on 19.10.2009.
Rao