IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.MC.No. 4482 of 2008() ------------------------- CMP.27/2008 of the Court of the Juvenile (Thavanoor, Kuttippuram) .................... PETITIONER(S): PETITIONER ------------------------- AMBIKA, D/O. APPUNNI, SUGANDHA GIRI ESTATE, 4TH UNIT, VYTHIRI, WAYANAD. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S): STATE COMPLAINANT -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR OF KERALA, HIGH COURT, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION, KOTTAKKAL, MALAPPURAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4482 of 2008 ---------------------------------------- Dated this the 28th day of January 2009 O R D E R The petitioner has come to this court aggrieved by the detention of her minor girl child aged 8 years at the juvenile home on the basis of the impugned order passed by the learned Chief Judicial Magistrate. 2. It is unnecessary to narrate in detail the relevant facts. The petitioner is the mother of the minor child. The biological father of the child is not looking after the child. There is an assertion that the child was born as a result of rape committed on the mother. The mother belongs to the scheduled tribe, it is submitted. The petitioner/mother has now married another person. The present husband of the petitioner and the petitioner were allegedly involved in the commission of offence under the Immoral Traffic Prevention Act. Cases have been registered against them, it is submitted. The child was retrieved from unwholesome environment and produced by the police before the learned Chief Judicial Magistrate along with a report. The learned Magistrate sent the child to the juvenile home. There is an allegation that the step father of the child had allegedly attempted to commit rape on her. A case has been registered against the step father alleging Crl.M.C.No.4482/08 2 attempt to commit rape on the child. The petitioner applied before the learned Chief Judicial Magistrate for release of the child to her custody. The learned Magistrate did not grant the said request. The petitioner claims to be aggrieved by the said order. 3. The learned counsel for the petitioner submits that a proper, meaningful and relevant consideration under Section 33 of the Juvenile Justice (Care and Protection of Children) Act has not been undertaken by the learned Chief Judicial Magistrate. It is admitted at all hands that Child Welfare Committee has not been constituted for the District of Malappuram and in these circumstances, the learned Chief Judicial Magistrate is even now exercising powers of the Child Welfare Committee. After detailed discussions at the Bar, it is requested [and accepted by me] that the learned Chief Judicial Magistrate, who exercises the powers of the Child Welfare Committee, can be directed to consider the matter afresh giving the parties an opportunity to adduce all materials before the learned Chief Judicial Magistrate exercising powers of the Child Welfare Committee. The learned counsel for the petitioner submits that the child is now deprived of the care, affection and company of her mother, the petitioner herein. The petitioner is willing to abide by any appropriate conditions in the interests of the minor child. The child can now be accommodated in Crl.M.C.No.4482/08 3 the house of the maternal grand parents of the child where the step father of the child can be injuncted from making visits, submits counsel. In any view of the matter, in the interests of the welfare of the child, the child deserves to be given over to the custody of the petitioner. Denial of such opportunity is harsh and cruel both to the mother and the child, contends the learned counsel for the petitioner. The learned counsel for the petitioner further submits that the report of the Probation Officer has not been obtained by the learned Chief Judicial Magistrate and in these circumstances there is urgent need for a re-consideration of the question of custody of the child. 4. I am inclined to agree with the learned counsel for the petitioner. I am satisfied that the interest of justice will be served eminently by setting aside the impugned order Annexure A2 and by directing the learned Chief Judicial Magistrate exercising the jurisdiction of the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act to pass appropriate fresh orders under Section 33 of the said Act after obtaining all relevant and necessary information including the report of the Probation Officer. The petitioner shall also be given opportunity to substantiate her claim and to make all alternative suggestion before the learned Chief Judicial Magistrate exercising the jurisdiction of Crl.M.C.No.4482/08 4 the Child Welfare Committee who shall thereafter pass appropriate further orders in the matter. 5. In the result, a) The impugned order dated 15/9/2008 in Crl.M.P.No.27/08 passed by the learned Chief Judicial Magistrate exercising jurisdiction of the Child Welfare Committee is hereby set aside. b) The learned Chief Judicial Magistrate exercising the power of the Child Welfare Committee is directed to dispose of the matter afresh under Section 33 of the said Act after observing all statutory formalities, after giving the petitioner an opportunity to raise and substantiate all her contentions and after securing the necessary reports. Needless to say, welfare of the child must weigh with the learned Magistrate while taking appropriate decision in the matter. Hand over copy of this order to the learned counsel for the petitioner for immediate production before the learned Magistrate. (R.BASANT, JUDGE) jsr Crl.M.C.No.4482/08 5 Crl.M.C.No.4482/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008