Leela v. State of Kerala & Others (Revision Petition under Juvenile Justice Act, 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** **RPJJ.No. 4 of 2018** AGAINST THE ORDER OF PLACEMENT OF A CHILD IN AN INSTITUTION IN CASE NO. (WC/TVPm/555/2018 DATED 19/07/2018 ON THE FILE OF THE CHILD WELFARE COMMITTEE, THIRUVANANTHAPURAM) ## **REVISION PETITIONER:** **LEELA AGED 59 YEARS D/O LISY, KANAVILA PUTHEN VEEDU, KURAKKONAM, POOVACHAL, KATTAKKADA TALUK, TRIVANDRUM** **BY ADVS. SANTHI M. SRI.G.RANJU MOHAN** ## **RESPONDENTS:** > 1 **STATE OF KERALA REPRESENTED BY SECRETARY, HOME AFFAIRS SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** 2. **CHAIRMAN, CHILD WELFARE COMMITTEE, THIRUVANANTHAPURAM-695 001.** 3 **THE DIRECTOR, DON BOSCO NIVAS, THIRUVANANTHAPURAM-695 001.** ## **BY SR.GOVERNMENT PLEADER SRI.K.B.RAMANAND** **THIS REV.PETITION(JUVENILE JUSTICE) HAVING BEEN FINALLY HEARD ON 18.09.2018, THE COURT ON 27.09.2018 PASSED THE FOLLOWING:** **“CR”** ## **ORDER** ## **R.Narayana Pisharadi, J** Children are the greatest gift to the humanity. Neglecting the children means loss to the society as a whole ( **Bandhua Mukti Morcha v. Union of India: AIR 1997 SC 2218** ). 2. Article 39(f) of the Constitution of India provides that the State shall, in particular, direct its policy towards securing the children opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 3. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'the Act') has been enacted with a view to ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstances by adopting a child-friendly approach keeping in view the best interest of the child in mind. 4. A male child aged 13 years, who was allegedly in the R.P.(JJ) No.4/2018 3 custody of his maternal grandmother, was admitted by the Child Welfare Committee (hereinafter referred to as 'the Committee'), Thiruvananthapuram in a child care institution by name Don Bosco Nivas. Annexure A1 is the copy of the order passed by the Committee in this regard. The petitioner, the grandmother of the child, challenges Annexure A1 order in this revision petition. 5. The averments in the revision petition can be briefly stated as follows: The mother of the child is the daughter of the petitioner. She is no more. After her death, the child was under the care and protection of the petitioner. The child is studying in the 8[th] standard in a school at Thiruvananthapuram. Suresh Kumar, the son of the petitioner, claimed right over the property which belonged to the mother of the child. The petitioner resisted his claim telling him that the property belongs to the child, after the death of the mother. On account of this enmity, Suresh Kumar filed false complaints before the Committee alleging that the petitioner was not taking proper care of the child and she was not providing basic needs to the child. On 19.07.2018, the officials of the Committee forcibly took the child R.P.(JJ) No.4/2018 4 from the house of the petitioner and the Committee passed Annexure A1 order admitting the child in an institution. The petitioner has filed Annexure A3 complaint before the Committee to release the child to her. The petitioner alleges that the child is not one who is in need of care and protection as defined in the Act. 6. One of the members of the Committee has filed an affidavit stating as follows: The Committee has not received any complaint from Suresh Kumar. The child was not forcibly taken from the custody of the petitioner. The Childline, Thiruvananthapuram brought the child before the Committee on 19.07.2018. The petitioner, the father of the child and a relative by name Sobhana were then with the child. The Childline reported that they got information about the child from the school in which he was studying. The child was irregular in attending the school. His mother had passed away years ago. His father deserted the child and he re-married leaving the child with the petitioner. The father of the child reported that the child was under the care of the relative by name Sobhana. The R.P.(JJ) No.4/2018 5 petitioner was working outside the district and she was not able to give proper care and protection to the child. Sobhana failed to send the child to the school regularly. The child is a person in need of care and protection. He has developed behavioural disorder. It was in order to rehabilitate the child that he was admitted in the Don Bosco Nivas. 7. We have heard Smt.M.Santhi, learned counsel for the petitioner and Sri.K.B.Ramanand, learned Senior Government Pleader. 8. At the outset, we may state that we intend to consider in this revision petition only the legality and propriety of Annexure A1 order dated 19.07.2018 passed by the Committee admitting the child in an institution. It is the only matter in issue in this revision petition. 9. The allegation made by the petitioner is that the child, who was under her care and protection, was forcibly taken away by the members of the Committee on 19.07.2018. The affidavit filed on behalf of the Committee by one of its members, along with Ext.R2(a) report of the Childline, would show that the R.P.(JJ) No.4/2018 6 aforesaid allegation is baseless. Ext.R2(a) report reveals that on 18.07.2018, the child was not in the house of the petitioner but he was in the house of Sobhana. Ext.R2(a) report further reveals that the child was produced in the office of the Childline on 19.07.2018 by the petitioner and Sobhana. It is stated in the affidavit that Suresh Kumar has not filed any complaint before the Committee as alleged by the revision petitioner. 10. Section 2(14) of the Act defines 'child in need of care and protection'. A child who comes under the twelve categories mentioned in Section 2(14) of the Act is defined as a 'child in need of care and protection'. In **Re: Exploitation of Children : AIR 2017 SC 2546** , the Apex Court has held that the definition of a child in need of care and protection must be given a broad and purposeful interpretation and that the benefits envisaged for children in need of care and protection should be extended to all such children in fact requiring State care and protection. 11. A close scrutiny of Section 2(14) of the Act reveals that even if a child has got guardian or parents, he/she may be 'a child in need of care and protection'. For example, as per R.P.(JJ) No.4/2018 7 Section 2(14)(iii)(a), if the child is residing with a person (whether a guardian of the child or not) and if such person has injured, exploited, abused or neglected the child, the child would be 'a child in need of care and protection'. As per Section 2(14) (v), even if a child has a parent or guardian, when such parent or guardian is found to be unfit or incapacitated by the authority concerned to care for and protect the safety and well-being of the child, then the child would be a 'child in need of care and protection'. 12. In the instant case, prima facie, Ext.R2(a) report shows that the child was residing with Sobhana and not with the petitioner. Sobhana was not taking proper care of the child. She was not sending the child to the school regularly. The petitioner has produced Annexure A5 certificate to prove the attendance of the child in the school. This certificate itself would show that the child was not regular in his attendance at the school. He had attended the school only for a total period of 29 days during the two months of June and July. The address of the child given in Annexure A5 certificate issued from the school is the address of R.P.(JJ) No.4/2018 8 Sobhana. 13. Section 29 of the Act deals with the powers of the Committee. Section 29(1) of the Act provides that the Committee shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection. Section 30 of the Act deals with the functions and responsibilities of the Committee. Section 30(i) provides that the functions and responsibilities of the Committee include taking cognizance of and receiving the children produced before it. Section 30(ii) of the Act states that it is the function of the Committee to conduct enquiry on all issues relating to and affecting the safety and well-being of the children under the Act. Section 30(vi) of the Act reveals that the functions and responsibilities of the Committee include ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child's individual care plan and passing necessary directions to parents or guardians or fit persons or children's homes or fit facility in R.P.(JJ) No.4/2018 9 this regard. Section 30(vii) of the Act states that it is the function of the Committee to select registered institution for placement of each child requiring institutional support, based on the child's age, gender, disability and needs and keeping in mind the available capacity of the institution. 14. Section 31(1) of the Act shows that a child in need of care and protection may be produced before the Committee by the Childline services. Section 36(1) of the Act provides that on production of a child or receipt of a report under Section 31, the Committee shall hold an inquiry in such manner as may be prescribed and the Committee, on its own or on the report from any person or agency as specified in sub-section (2) of section 31, may pass an order to send the child to the children's home or a fit facility or fit person. Section 37(1) of the Act states that the Committee on being satisfied through the inquiry that the child before it is a child in need of care and protection, it may declare so and take steps for restoration of the child to parents or guardian or family of the child or for the placement of the child in Children's Home or fit facility or with fit person for long term or R.P.(JJ) No.4/2018 10 temporary care. 15. Section 40(3) of the Act states that the Committee shall have the powers to restore any child in need of care and protection to his parents, guardian or fit person, as the case may be, after determining the suitability of the parents or guardian or fit person to take care of the child, and give them suitable directions. Section 97 of the Act provides for release of a child from an institution. Section 97(1) of the Act states that when a child is kept in a Children's Home or special home, on a report of a probation officer or social worker or of Government or a voluntary or non-governmental organisation, as the case may be, the Committee or the Board may consider, the release of such child, either absolutely or on such conditions as it may think fit to impose, permitting the child to live with parents or guardian or under the supervision of any authorised person named in the order, willing to receive and take charge, educate and train the child, for some useful trade or calling or to look after the child for rehabilitation: 16. A survey of the aforesaid provisions of the Act would R.P.(JJ) No.4/2018 11 show that the Committee has got the power to find that a child produced before it is a “child in need of care and protection” and to admit the child in any child care institution for rehabilitation or permanent or temporary care. In the instant case, Ext.R2(a) report made by the Childline, prima facie, shows that the child was not under the care and protection of the petitioner who is his maternal grandmother but the child was under the custody of a relative of the petitioner by name Sobhana. Ext.R2(a) report contains materials to show that the child was neglected by Sobhana. On the basis of the materials contained in Ext.R2(a) report the Committee was justified in taking a decision to admit the child in a child care institution for temporary care. Annexure A1 order passed by the Committee does not suffer from any illegality or impropriety. Moreover, the revision petition is filed on the basis of a baseless allegation that the child was forcibly taken from the custody of the petitioner by the officials of the Committee. The revision petition is liable to be dismissed for this reason alone. 17. The petitioner has given Annexure A3 petition before R.P.(JJ) No.4/2018 12 the Committee for releasing the child to her custody. The Committee has not passed any orders on this petition. In the affidavit filed by one of the members of the Committee it is not stated what is the present stage of the enquiry being conducted on Annexure A3 petition. 18. At this juncture, we take note of the general principles to be followed while implementing the provisions of the Act, which are stated under Section 3 of the Act. We particularly take note of the following principles: _''3. (iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child._ _(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential._ _(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the_ R.P.(JJ) No.4/2018 13 _biological family or adoptive or foster parents, as the case may be._ _(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry._ _(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be reunited with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest”._ 19. In **Krishna Kumar v. State of Kerala : 2018(3)** **KHC 485** , a Division Bench of this Court had occasion to highlight the need for adhering to the fundamental principles mentioned under Section 3 of the Act while taking a decision regarding the care and custody of a child. The Committee shall pay special attention to the principles mentioned above and also hear the child and interact with him before passing any order on Annexure A3 petition. 20. Since the challenge in this revision petition is confined R.P.(JJ) No.4/2018 14 to the legality and propriety of Annexure A1 order passed by the Committee for admission of the child in an institution and since Annexure A3 complaint is pending consideration before the Committee, we did not think it necessary to direct the child to be produced before this Court and to interact with him. 21. While exercising revisional powers, the High Court cannot convert itself to an appellate court and reverse the findings of fact arrived at by the competent authority under the statute. The finding of the competent authority under the statute cannot be interfered unless the High Court is satisfied as to the illegality or impropriety of the order challenged in revision. In the light of the circumstances narrated earlier, especially in view of the facts stated in Ext.R2(a) report filed before the Committee by the Childline, we find no illegality or impropriety in Annexure A1 order passed by the Committee for admission of the child in a child care institution. 22. Consequently, we dismiss the revision petition. However, we direct the second respondent Committee to complete the enquiry on Annexure A3 petition given by the R.P.(JJ) No.4/2018 15 revision petitioner before it within a period of two weeks from the date of production of a copy of this order before it. Such order shall be passed by the Committee on an independent evaluation of the materials before it, untrammeled by any of the observations made by this Court in this order with regard to the facts of the case, but having due regard to the fundamental principles contained in Section 3 of the Act. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr/24/09/2018** R.P.(JJ) No.4/2018 16 ## **APPENDIX** ## **ANNEXURES OF PETITIONER:** **A1: TRUE COPY OF THE ORDER OF PLACEMENT OF CHILD ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 19/07/2017.** **A2: TRUE COPY OF THE CONDUCT CERTIFICATE ISSUED BY THE SCHOOL AUTHORITY.** **A3: TRUE COPY OF THE COMPLAINT/PETITION DATED 27.07.2018.** **A4: TRUE COPY OF THE MEDICAL PRESCRIPTION DATED 07.07.2018. A5: TRUE COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY THE SCHOOL AUTHORITY DATED 10.08.2018.** ## **RESPONDENTS' EXHIBITS:** ## **NIL** ## **TRUE COPY** ## **PS TO JUDGE**