Shakkela K.S. v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **WP(Crl.).No.430 OF 2019** ## **PETITIONER/S:** **SHAKKELA K.S, AGED 45 YEARS** **W/O. ABDUKUNJU, MUDAYANKATTIL HOUSE, CHOVVALLOORE DESOM, EDAMATTAM VILLAGE, KODUNGALLORE TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.N.L.BITTO** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE SUPERINTENDENT OF POLICE, THRISSUR DISTRICT, PIN-680001.** - **3 THE CIRCLE INSPECTOR OF POLICE, KODUNGALLORE CIRCLE OFFICE, THRISSUR DISTRICT-680664.** - **4 THE SUB INSPECTOR OF POLICE, KAIPAMANGAM POLICE STATION, 680681.** - **5 CHILD WELFARE COMMITTEE, THRISSUR DISTRICT, GOVERNMENT CHILDRENS HOME, RAMAVARMAPURAM P O, THRISSUR, THRISSUR DISTRICT680631.** ## **GP--K B RAMANAND .** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON 17.12.2019 DELIVERED THE FOLLOWING:** **WP(Crl.).No.430 OF 2019** **2** ## **JUDGMENT** **Dias,J.** **This writ petition is filed seeking a writ of habeas corpus to produce the child of the petitioner named “Safa”, who is allegedly in the illegal detention of the 5[th] respondent–the Child Welfare Committee (in short “CWC”), Thrissur.** **2. The thumbnail sketch of the facts pleaded in the writ petition is that, the petitioner's daughter is illegally detained by the 5[th] respondent on an anonymous complaint alleging that the petitioner has** **WP(Crl.).No.430 OF 2019** **3** **compelled the child to prostitution. The petitioner asserts that she and her children were abandoned by her husband and father of the children, and they were compelled to file M.C No.12/2019 before the Family Court, Irinjalakuda.** **3. It is further asserted that the Headmaster of the school where Safa is studying, informed the petitioner that he has also got a complaint alleging that the child is being forced to prostitution. The school authorities were not ready to divulge the details of complaint, but forwarded the complaint to the CWC. The petitioner was directed to appear before the CWC along with the child on 7.12.2019. Without conducting any enquiry, the CWC by Ext.P1 order directed the child to be kept** **WP(Crl.).No.430 OF 2019** **4** **in a child care institution at Thrissur, for a period of three months.** **4. According to the petitioner, Ext.P1 order tantamounts to illegal detention of her daughter by the 5[th] respondent. Even though, the petitioner made earnest efforts seeking restoration of the custody of her child, the CWC has refused to entertain her plea and, therefore, the continuation of the child in the child care institution is illegal detention, and against the wishes of the petitioner and the child. Thus, the petitioner prays for a writ of habeas corpus to produce the child before this Court.** **5. Pursuant to the interim order dated 09.12.2019, the learned Government Pleader was directed to get instructions in the case and submit a report from the CWC.** **WP(Crl.).No.430 OF 2019** ## **5** **6. The learned Government Pleader has handed over a statement submitted by the CWC along with the order placing the child in a child care institution and a report submitted by the Child Protection Officer, Thrissur.** **7. It is seen from the statement of the CWC and the report of the Child Protection Officer, that the child is a child in need of care and protection as defined under Section 14 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity hereinafter referred to as “Act”).** **8. The CWC, relying on the report of the Child Protection Officer has felt that, for the protection of the child's best interest, the child has to be placed in a child care institution. Accordingly, Ext.P1** **WP(Crl.).No.430 OF 2019** **6** **order was passed.** **9. The CWC has specifically mentioned in the statement that it has made arrangements to see that the child attends school as well as her examination which is scheduled till 20.12.2019.** **10. We have heard Adv.Bitto N.L, the learned counsel for the petitioner and Sri.K.B.Ramanand, the learned Government Pleader appearing for the respondents.** **11. On going through the pleadings and documents in the writ petition and the statement submitted by the CWC with the** **report of the Child Protection officer, we are prima facie satisfied that the child is a child in need of care and protection. However, we abjure ourselves from expressing any opinion on the merits of the allegations** **WP(Crl.).No.430 OF 2019** **7** **and counter-allegations argued before us, considering the fact that the petition before the CWC is at its initial stage.** **12. The Hon'ble Supreme Court in** _**Anjali Kapoor v. Rajiv Baijal [(2009) 7 SCC 322]**_ **has held that the predominant criteria of the court is to secure the paramount welfare and best interest of the child and not the legal rights of the parent.** **13. The contention of the learned counsel for the petitioner that the child is under the illegal detention of the CWC is untenable and unsustainable in law because the CWC is a statutory authority constituted under Section 27 of the Act. It is the statutory function of the CWC as provided under Section 29 of the Act, to dispose of cases for the care, protection, treatment,** **WP(Crl.).No.430 OF 2019** **8** **development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection.** **14. On the basis of a complaint, an enquiry was conducted by the CWC and the Child Protection Officer. Prima facie, it was found that the allegations raised in the complaint were grave, warranting immediate interference by the statutory authority. The CWC could not remain mute after receiving a complaint of such gravity. Accordingly, the CWC has placed the child in the care and protection of a child care institution. Whether the allegations and counter-allegations raised are genuine or not, is a matter to be considered by the CWC in the proceedings pending before it.** **WP(Crl.).No.430 OF 2019** **9** **Therefore, in the light of the materials on record and the findings rendered above, we hold that there is no illegal detention of the child as alleged in the writ petition to issue a writ of habeas corpus under Article 226 of the Constitution of India.** **15. We make it clear that it would be open to the petitioner to submit an application before the CWC as per the provisions of the Act, and the CWC shall consider the same and dispose it of, in accordance with law, after affording the petitioner an opportunity of being heard, at any rate, within a period of one month from the date of filing the application. The CWC shall, thereafter, pass a speaking order on the application. The petitioner is also at liberty to challenge Ext.P1 order passed by** **WP(Crl.).No.430 OF 2019** **10** **the CWC in an appeal as provided under Section 101 of the Act.** **In the result, the writ petition is dismissed, reserving the right of the petitioner to move the CWC or prefer an appeal as mentioned above.** **Sd/-K.HARILAL, JUDGE** **ma/13/12/2019** **Sd/-C.S.DIAS, JUDGE** /True copy/ P.S to Judge **WP(Crl.).No.430 OF 2019** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE ORDER PASSED AS 1368/PA/2019 BY THE 5TH RESPONDENT DATED 7/12/2019.**