Judgment:
(Prayer in C.R.P.(PD)No.3434 of 2012:- Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order passed by the first respondent, on 6.7.2012, in C.W.C.No.170 of 2012.
Prayer in C.R.P.(PD)No.3435 of 2012:-Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order passed by the first respondent, on 6.7.2012, in C.W.C.No.171 of 2012 and to direct the fourth respondent to handover the child to the revision petitioner-Society in the interest of child.)
COMMON ORDER:
1. These two Civil Revision Petitions are filed challenging the orders, dated 6.7.2012, passed in C.W.C.Nos.170 & 171 of 2012, by the respondents 1 and 2, thereby, directing the production of one child, by name S.C.Sairam, aged about 2 = years before the Child Welfare Committee in the first week of every month and for handing over another child, by name, Bhavana, to Balamandir Kamaraj Trust, viz., the fourth respondent herein.
2. Mr.M.S.Krishnan, the learned Senior Counsel appearing for the revision petitioner submitted that the revision petitioner is a Society, registered under the Tamil Nadu Societies Registration Act and is recognized and approved by the Ministry of Home Affairs, Government of India, under the provisions of Foreign Contribution (Regulation) Act, 1976. The Society is also registered under the Orphanages & Other Charitable Homes (Supervision and Control) Act, 1960.
3. The learned Senior Counsel for the revision petitioner further submitted that the revision petitioner-Society is also registered under Section 34 (3) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). As per the registration under the Act, the revision petitioner-Society has gained a status of Children's Home, defined under Section 2(e) of the said Act and it is taking care of 176 children, who are in need of care and protection. The Authorities under the said Act also, periodically, visited the revision petitioner-Society and so far, no adverse remarks are made by the Authorities constituted under the Act.
4. Whileso, on 29.06.2012, the Child Welfare Officer, by name Mrs.Shanthi, along with her Junior Assistant, one L.Revathi, visited the revision petitioner-Society and gave instructions to the Society to produce the three months old child, by name Bhavana before the Child Welfare Committee through Child Line, on or before, 2.7.2012, and also directed for the production of all the children under the Society, who are below the age of five years before the Child Welfare Committee to get their opinion and the same should be reported to the Child Welfare Officer, on or before, 02.07.2012.
5. In compliance of the abovesaid directions given by the Child Welfare Officers, the child, by name S.C.Sairam, aged 2= years and other child, viz., Bhavana, aged about three months were produced and the details regarding the manner, in which, those two children came into the custody of the revision petitioner-Society were also furnished. Thereafter, the first respondent passed the impugned order, on 06.07.2012, thereby, directing the revision petitioner-Society, to produce child, S.C.Sairam, before the Child Welfare Committee in the first week of every month and also directed the revision petitioner-Society to provide proper care and facilities to the said child and the revision petitioner-Society should strictly adhere to the norms, as laid down under the Act.
6. The learned Senior Counsel for the revision petitioner-Society has no objection for the conditions stipulated, viz., the condition that the child should be provided with much proper care and facilities and the revision petitioner-Society should strictly adhere to the norms, as laid down under the Act. But the order of the first respondent, directing the revision petitioner-Society to produce the child, S.C.Sairam, before the Child Welfare Committee in the first week of every month is not in accordance with law. Therefore, that part of the order is challenged in C.R.P.No.3434 of 2012.
7. The learned Senior Counsel for the revision petitioner-Society further submitted that on the same date itself, the respondents 1 and 2 passed the order in respect of the another child Bhavana, aged three months and directed the revision petitioner-Society to handover the said child to Balamandir Kamaraj Trust, viz., the fourth respondent in C.R.P.No.3435 of 2012 and that order is challenged in C.R.P.No.3435 of 2012.
8. The learned Senior Counsel for the revision petitioner also submitted that the respondents 1 and 2 have no jurisdiction to pass such an order in respect of the child in custody of the revision petitioner-Society and also questioned the competency of the Member/Chairman to pass such order. As per Section 29 of the Act, only the Committee has to pass such order and on that ground, the impugned orders are liable to be set aside. It is his further submission that the revision petitioner-Society has been registered as "Children's Home" by the respondents 1 and 2 and therefore, they are entitled to take the custody of the child, only in case of any complaint given against the revision petitioner-Society, for instance, like not treating the child in their custody in the proper manner, as provided under the Act and in the absence of any complaint, the respondents 1 and 2 have no jurisdiction to issue any direction or to transfer the child Bhavana from the custody of the revision petitioner-Society to Balamandir Kamaraj Trust.
9. The learned Senior Counsel for the revision petitioner, therefore, submitted that the orders passed by the respondents 1 and 2, on 06.07.2012, are against the provisions of the Act and they are liable to be set aside.
10. Though the respondents 1 and 2 in both the Petitions and the fourth respondent in C.R.P.(PD)No.3435 of 2012, are served and their names are printed in the cause list, there is no appearance on their behalf and hence, they are set ex parte.
11. Mrs.Saraswathi Shivaram Iyer, the learned Government Advocate appearing for the third respondent in both the Revision Petitions submitted that under Section 52 of the Act, only Appeal lies and therefore, Revision Petitions are not maintainable.
12. To appreciate the contention of the learned Senior Counsel for the revision petitioner-Society that the respondents 1 and 2 have no power or jurisdiction to pass such order, we will have to see the provisions of the Act, which are as follows:-
i) Section 2(d) of the Act, defines "child in need of care and protection" and under that Clause, 9 categories of child are stated to be child in need of care and protection.
ii) Section 2(e) defines "children's home", which means an institution established by a State Government or by voluntary Organizations and certified by that Government under Section 34.
iii) Section 2(f) deals with "Committee" which means a Child Welfare Committee, constituted under Section 29.
iv) "Competent Authority" is defined in Section 2(g) in relation to children in need of care and protection a Committee and in relation to juveniles in conflict with law a Board;
v) The term "Juvenile" or "child" as defined in Section 2(k) means a person, who has not completed eighteenth year of age.
13. Thus, a reading of the various clauses of definition, as seen above, makes it clear that there is difference between the child and the child in need of care and protection. A child is a person, who has not completed eighteenth year of age and the child in need of care and protection means a child, coming within the following categories, as stated in Section 2 (d) of the Act:-
"(i) Who is found without any home or settled place or abode and without any ostensible means of subsistence,
(ii) who resided with a person (whether a guardian of the child or not) and such person.
(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out
or
(b) has killed, abused, or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person
(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,
(iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,
(v) who does not have parent and no one is willing to take care of or whose parents have abandoned [or surrendered] him or who is missing and run away child and whose parents cannot be found after reasonable injury,
(vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,
(vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
(viii)who is being or is likely to be abused for unconscionable gains,
(ix)who is victim of any armed conflict, civil commotion or natural calamity;"
14. Chapter 3 of the Act deals with the protection in respect of the child in need of care and protection. Section 29 of the Act speaks about the constitution of the Child Welfare Committee and it is specifically stated that the State Government, by notification in the Official Gazette, shall constitute one or more Child Welfare Committee for exercising powers and discharge the duties conferred on such committees in relation to the Child in need of care and protection under the Act.
15. Therefore, the Child Welfare Committee has to be constituted only in relation to the child in need of care and protection under this Act. This has also been made clear in Section 30 of the Act, which deals with the procedure in relation to Committee and as per Section 30(2), a child in need of care and protection, may be produced before an individual member for being placed in safe custody, or otherwise, when the Committee is not in Session. Section 32 says that, any child in need of care and protection may be produced before the Committee by the persons named in that Section. Section 33 says that an enquiry has to be conducted, on receipt of the report under Section 32. Section 34 authorizes the Government to recognize the Children's Homes and as per Section 34 (3) all Institutions run by voluntary organizations for children in need of care and protection, shall register itself under the provisions of the Act.
16. Therefore, a reading of the various provisions of Chapter III of the Act, makes it clear that the Child Welfare Committee is constituted to exercise powers and to discharge duties only in relation to child in need of care and protection and in respect of other child, as defined under Section 2(k), the Committees shall have a final Authority to dispose of all the cases for care, treatment, education, training, development and rehabilitation of the children as well as to provide the basic needs and protection of Human Rights. Further, Section 31(2) of the Act also makes it clear that the Child Welfare Committee shall have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.
17. Therefore, the word "children" defined in Section 31 of the Act, must be read only as children in need of care and protection, having regard to the provisions of Sections 29, 30 and 32 of the Act.
18. As stated supra, as per the definition of Section 2(d) of the Act, the two children, viz., S.C.Sairam and Bhavana in respect of whom, the impugned orders were passed by the respondents 1 and 2 cannot be brought under the definition of Section 2(d) and they cannot be considered as the child in need of care and protection.
19. It is an admitted fact by the first respondent that the child S.C.Sairam was handedover to the revision Petitioner-Society by the mother-Selvi in the presence of the Inspector of Police, Mr.Jaichandran and one Mr.Deverajan and the said child is in the custody of the revision petitioner-Society from 04.08.2009. Similarly, the child Bhavana was handed over to the custody of the revision petitioner-Society by her mother-Punitha Manickam, and an affidavit was also sworn to by the mother, on 02.07.2012. A reading of the affidavit filed by the mother would also make it clear that the child Bhavana cannot be brought under the ambit of Section 2(d)(v) Act, as the mother of the child has not abandoned her, but, only entrusted for proper custody. Therefore, the two children, by name S.C.Sairam and Bhavana came to the custody of the revision petitioner-Society through their respective mother, and therefore, they cannot be considered as child in need of care and protection, as per the provisions defined in Section 2(d) of the Act.
20. As stated supra, the Child Welfare Committee is constituted to exercise powers and discharge duties in relation to the child in need of care and protection and when the two children are not coming under the category of the child in need of care and protection, the respondents 1 and 2 have no jurisdiction over such persons.
21. The Juvenile Justice (Care and Protection of Children) Rules, 2007 also contains the provisions regarding the child in need of care and protection and they are enumerated in Chapter No.IV of the Rules. As per Rule 19, Child Welfare Committee is the Committee, constituted under Section 29 of the Act and Rule 27 deals with production of the child before the Committee and it has been specifically mentioned that the child in need of care and protection shall be produced before the Committee. Rule 27 (3) empowers the Committee to take cognizance of cases, suo motu brought to the notice and reach out to a child in need of care and protection. Section 25 (c) empowers the Committee to reach out to such children in need of care and protection, who are not in a position to be produced before the Committee. Rule 29 deals with the Children's Home set up by the Government or any Organizations, voluntarily functioning for children in need of care and protection.
22. Therefore, even as per the Juvenile Justice (Care and Protection of Children) Rules also, the Child Welfare Committee can exercise its power or jurisdiction only in respect of the child in need of care and protection, and in respect of the other child, i.e., the child, as defined under Section 2(k), the Child Welfare Committee has no power or control.
23. Admittedly, the revision petitioner-Society is registered as Children's Home, under Section 34 (3) of the Act and therefore, they are entitled to keep the custody of the children and the children, viz., Sairam and Bhavana, are not coming under the definition of "child in need of care and protection" and hence, the respondents 1 and 2 have no jurisdiction to exercise any power in respect of those two children in the absence of any complaint made against the revision petitioner-Society. Though under Section 52 of the Act, Appeal lies to the Court of Session, if any person is aggrieved by an order made by a Competent Authority, having regard to the fact that the respondents 1 and 2 have no jurisdiction to pass such order, the presence of appeal remedy would not be an impediment to this Court, to entertain these Civil Revision Petitions, while sitting under Article 227 of the Constitution of India.
24. Further, as per Section 53 of the Act, the High Court can also call for records either of its own motion, or on an application received in this behalf, to scrutinize the order passed by the Competent Authority or the Court of Session, to verify and satisfy itself as to the legality or propriety of any order passed by such Authorities and therefore, under Section 53 of the Act, this Court has got power to entertain the same. As the respondents 1 and 2 have no power to interfere with the custody of the child, viz., Sairam and Bhavana, as they are not coming under the category of the child in need of care and protection, the order passed by the respondents 1 and 2 are liable to be set aside. Accordingly, the orders impugned herein are set aside and the Civil Revision Petitions are allowed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.