IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.04.2011 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.Nos.628 & 630 of 2010 and M.P.Nos.3 to 6 of 2010 in Crl.R.C.No.628/10 And M.P.Nos.1 to 5 of 2010 in Crl.R.C.No.630/10 Crl.R.C.No.628 of 2010 Gemma Bridget D'Silva ... Petitioner Vs. 1.The Chairperson Child Welfare Committee No.300, Purasaiwalkam High Road Kelleys, Chennai 2.Guild of Service (Central) Adoption Unit Rep. By its Secretary Mr.K.N.George Guild of Service No.32, Casa Major Road, Egmore Chennai – 600 008 3.Parveen Banu ... Respondents (Impleaded as the third respondent as per the order of this Court dated 29.07.2010 in M.P.No.2 of 2010) Criminal Revision Case filed under Section 397 r/w.401 of Criminal Procedure Code and Sec.54 and 53 of Juvenile Justice Act to call for the records made in the impugned letter dated 21.06.2010 issued by the first respondent, set aside the same and allow the present criminal revision case. For Petitioner : Mr.Abudukumar Rajarathinam for Mr.S.Sathiaseelan For Petitioner in : Mr.N.Chandrasekaran M.P.No.6/2010 for Mr.R.Shivakumar For Respondent 1 : Mr.Rajan Babu for M/s.Raji and Rajan For Respondent 2 : Mr.V.P.Raman For Respondent 3 : Mrs.Geetha Ramaseshan https://hcservices.ecourts.gov.in/hcservices/ Crl.R.C.No.630 of 2010 M.Thirunavukkarasu ... Petitioner Vs. 1.The Chairperson Child Welfare Committee No.300, Purasaiwalkam High Road Kelleys, Chennai 2.Guild of Service (Central) Adoption Unit Rep. By its Secretary Mr.K.N.George Guild of Service No.32, Casa Major Road, Egmore Chennai – 600 008 ... Respondents Criminal Revision Case filed under Section 397 r/w.401 of Criminal Procedure Code and Sec.54 and 53 of Juvenile Justice Act to call for the records made in the impugned letter dated 21.06.2010 issued by the first respondent, set aside the same and allow the present criminal revision case. For Petitioner : Mr.Abudukumar Rajarathinam for Mr.S.Sathiaseelan For Petitioner in : Mr.N.Chandrasekaran M.P.No.5/2010 for Mr.R.Shivakumar For Respondent 1 : Mr.Rajan Babu for M/s.Raji and Rajan For Respondent 2 : Mr.V.P.Raman COMMON ORDER These two criminal revision cases have been filed against the impugned order of the Child Welfare Committee dated 21.06.2010 that was communicated to the Guild of Service (Central), namely the second respondent herein, by the Chairperson of the Child Welfare Committee, the first respondent herein. In the said order a direction was given for the immediate transfer of six babies by names 1)Ruby, born on 25.06.2005, 2) Babu, born on 03.01.2005, 3) Sweety, born on 15.09.2005, 4) Sheela, born on 12.11.2005, 5) Hippolin, born on 21.08.2005 and 6) Thaneer, born on 21.08.2008 to Balamandir Adoption Unit. Crl.R.C.No.628/2010 has been filed by Ms.Gemma Bridget D'Silva. Admittedly she is having the temporary custody of the child Sweety under a pre-adoptive foster care arrangement. Similarly, Crl.R.C.No.630 of 2010 has been filed by Mr.M.Thirunavukkarasu, who is having temporary custody of the child Thaneer under a similar pre-adoptive foster care arrangement. https://hcservices.ecourts.gov.in/hcservices/ 2. Suspecting criminal conspiracy, child rocketing and illegal adoption in relation to the above said children, totally 6 in number, regarding whom process of legal adoption had not been completed, the Child Welfare Committee has directed transfer of all the six children to another adoption agency by name Balamandir Adoption Unit, by the impugned order dated 21.06.2010. The said impugned order is under challenge in respect of two of the above said children, namely Sweety and Thaneer. 3. For clear understanding of the issues involved in these criminal revision cases, stating briefly the facts leading to the filing of the criminal revision cases shall be of immense help. The facts are as follows:- i) The first respondent is the Chairperson of the Child Welfare Committee, a statutory body. The second respondent, namely the Guild of Service (Central) is a social welfare organisation set up for the benefit of economically backward, physically and mentally handicapped and socially weaker sections of the society. The second respondent has also been registered under the Societies Act, 1860. The adoption unit of the second respondent herein is also one of the adoption units recognised by the Ministry of Social Welfare, Government of Tamil Nadu, as a charitable home of destitute women and children. It has also got a license to process in-country and inter-country adoption following legal procedure, including the requirement of getting a clearance certificate from the Child Welfare Committee regarding any child to be given in adoption to the effect that the child is free for adoption. ii) Ms.Shaila Samuel was a social worker attached to the Guild of Service (second respondent). A total number of five children (Ruby, Babu, Sweety, Sheela and Hippolin) were transferred from Missionaries of Charity, Salem to a destitute home at Thiruvanmiyur in Chennai called "Cheshire Homes" on the premise that all those children needed special medical attention and the same could not be provided by the Missionaries of Charity. Thereafter, the Commissioner of Social Welfare, Chepauk, Chennai was addressed for the transfer of all the six children to some other adoption agency on the premise that Cheshire Homes did not possess valid license to process and place children in adoption. Pursuant to the said request, after ascertaining the willingness of Guild of Service (Central) Adoption unit/the second respondent herein and the fact that that the said unit possessed a valid licence to process in- country and inter-country adoptions and also based on the letter of the Guild of Service to the effect that it was interested in and capable of finding suitable adoptions in Chennai for the said children, the Commissioner of Social Welfare, Chepauk, Chennai accorded permission for the transfer of all the five children referred to above to the Guild of Service (Central) Adoption unit, Egmore, Chennai for the purpose of rehabilitating the children under adoption programme by following the guidelines of the Central Adotpion Resource Agency (CARA). https://hcservices.ecourts.gov.in/hcservices/ iii) Thereafter, Ms.Gemma Bridget D'Silva, the petitioner in Crl.R.C.No.628 of 2010 seems to have got temporary custody of the child 'Sweety' under pre-adoptive foster care arrangement on her application expressing her desire and willingness to adopt a child in the age group of 3 to 4 years and on her identifying the child Sweety as the child of her selection for adoption. Ms.Gemma Bridget D'Silva, the petitioner in Crl.R.C.No.628 of 2010 was working at that point of time as the District Social Welfare Officer, Chennai. On obtaining temporary custody of the child Sweety under Pre-Adoptive Foster Care arrangement, she named the child as Gemma Bridget Angelina Rachel Sweety. iv) On 05.02.2010 Ms.Shaila Samuel, the above said Social worker attached to the Guild of Service (Central), filed separate applications on behalf of the Guild of Service (Central) before the Child Welfare Committee to get all the five children declared as "free for adoption". While processing those applications made by the said social worker Ms.Shaila Samuel, it was found that four out of the above said five children came to be transferred from one and the same hospital in Coimbatore called "Sheela clinic" to Cheshire Homes at Thiruvanmyur, Chennai and all the four children had been routed through the Missionaries of Charity, Salem. Therefore, the Child Welfare Committee took a decision to investigate the matter and requested the Probation Officer, Coimbatore to collect details of those four children. When the Probation Officer made enquiries with the doctors at Sheela Clinic, Coimbatore, he was informed at the first instance that they were not able to trace the records. However, the hospital authorities furnished an information to the Probation Officer that even in respect of the alleged abandoned children, no complaint to the police was given by the hospital authorities. During the course of his enquiry, the Probation Officer, Coimbatore was able to find out the address of the parents of the child "Sweety" from the records of the above said Clinic. When enquiries were made with the doctors at Sheela Clinic and with the social worker Ms.Shaila Samuel, their answers were found to be inconsistent. The Probation Officer also obtained the statement of one Mohammed Usman, who gave information to the effect that his wife gave birth to a female child on 15.09.2005 in Sheela Clinic; that even two days prior to delivery, the Medical Officer of the said hospital informed them that the child in the womb had an incurable kidney disease and might die within a week after birth; that based on such information, the Medical Officer got their declaration in writing in stamp papers to the effect that they were willing to give the child to an orphanage; that when they again approached the Medical Officer in the said hospital after two months, they were informed that the child was no more; that at the same time, the hospital authorities refused to give any record pertaining to their child and that only when the Probation Officer came to their house for enquiry, they came to know that their child was alive. The said statement of Mohammed Usman was found to be conflicting with the statements of doctors of Sheela Clinic. As per the statements of doctors of Sheela Clinic the child of Mohammed Usman had been left behind by him and his wife in the https://hcservices.ecourts.gov.in/hcservices/ hospital and there was no claim for the child for about 26 days and pursuant to the same, the hospital authorities handed over the child to Missionaries of Charity. However, Ms.Shaila Samuel, the social worker, gave a contrary statement as if Mohammed Usman and his wife had surrendered the baby. Similar conflicting statements were also given by Ms.Shaila Samuel and the doctors of Sheela Clinic, Coimbatore regarding another baby by name Babu. v) The above said facts were reported by the Probation Officer to the Child Welfare Committee and the committee entertained a serious doubt that there could be a conspiracy involving Sheela Clinic, Shaila Samuel and Missionaries of Charity, Salem and also consequent child trafficking and illegal adoption. Pursuant to the entertainment of such a doubt, the Child Welfare Committee asked the Social worker Ms.Shaila Samuel to offer appropriate explanation for the said discrepancies and clear their doubts. But, Ms.Shaila Samuel failed to do so. Under such circumstances, the Chairperson of the Child Welfare Committee, along with the Probation Officer, visited the adoption unit of the Second Respondent on 19.06.2010 and verified the records pertaining to the babies admitted therein. At the time of such inspection and verification, the Secretary of the second respondent was present. On verification of the records, it was found that none of the five children ordered to be transferred from "Cheshire Homes" to Guild of Service adoption unit had reached the fondling home of the second respondent. Hence the Chairperson of the Child Welfare Committee suspected that the social worker Ms.Shaila Samuel would have kept the children at Cheshire Homes itself till the date of inspection. During the said inspection, the Chairperson of the Child Welfare Committee also found that as per records there should be 38 children, but actually 37 children alone were present. No one in the adoption unit of the second respondent was able to furnish particulars as to the whereabouts of the said child. On verification of records, the Chairperson of the Child Welfare Committee found that the missing child was none other than Thaneer, the child concerned in Criminal R.C.No.630/2010 and that he had been sent out on adoption before ever getting legal clearance. The social worker Shaila Samuel had also submitted an application to get the said child also declared 'free for adoption'. vi) The Chairperson of the Child Welfare Committee on the basis of the facts ascertained, lodged a complaint with the Commissioner of Police, Chennai on 25.06.2010. A copy of the said complaint was also marked to the Commissioner of Police, Coimbatore. Besides lodging of the said complaint, the Chairperson of the Child Welfare Committee ordered the second respondent to transfer all the six children, namely Ruby, Babu, Sweety, Sheela, Hippolin and Thaneer to another agency called Balamandir adoption unit. It seems thereafter Ms.Shaila Samuel was placed under suspension by the second respondent and the persons who got temporary custody of the children in the pre-adoptive foster care arrangement were directed by the second respondent to produce the children to be transferred to Balamandir Adoption Unit in compliance with the impugned order of the Child Welfare Committee. https://hcservices.ecourts.gov.in/hcservices/ It is admitted by the parties to these criminal revision cases that except the children Sweety and Thaneer, other four children were transferred to Balamandir Adoption Unit in compliance with the impugned order. 4. Under such circumstances alone, Ms.Gemma Bridget D'silva, who had got the temporary custody of the child Sweety and Thirunavukkarasu, who had got the temporary custody of the child Thaneer, under separate Pre-Adoptive Foster Care arrangements, have come forward with Criminal R.C.No.628/2010 and 630/2010 respectively praying that the impugned order of the first respondent dated 21.06.2010 should be set aside in so far as the same is concerned with the children Sweety and Thaneer. 5. In both the petitions, the Chairperson of the Child Welfare Committee and the Guild of Service (Central) have been arrayed as respondents and ranked as respondents 1 and 2 respectively. One Parveen Banu, wife of Mohammed Usman, claiming to be the mother of the child Sweety, got impleaded herself as third respondent in Crl.R.C.No.628/2010 by virtue of an order passed by this court in M.P.No.2/2010 in the above said Criminal Revision Case. The social worker Ms.Shaila Samuel has come forward with M.P.No.6/2010 in Crl.R.C.No.628/2010 for getting herself impleaded in the said criminal revision case. Similarly, she has filed M.P.No.5/2010 in Crl.R.C.No.630/2010 to get herself impleaded as a party respondent in the said criminal revision case. In addition to those miscellaneous petitions, the following miscellaneous petitions are also pending. M.P.No.1/2010 in Crl.R.C.No.628/2010 has been filed by the petitioner in the said criminal revision case for stay of operation of the impugned order dated 21.06.2010 so far as it relates to the child Sweety. M.P.Nos.3 to 5 of 2010 in Crl.R.C.No.628/2010 have been filed by the Chairperson of the Child Welfare Committee for (1) a direction to hand over the child Sweety to the Child Welfare Committee, (2) a direction to produce Sweety for DNA Test and (3) to vacate the stay granted in M.P.No.1 of 2010. M.P.No.1 of 2010 in Crl.R.C.No.630/2010 has been filed by the petitioner therein for stay of the operation of the impugned order dated 21.06.2010 so far as it relates to the child Thaneer. M.P.Nos.2 to 4/2010 in Crl.R.C.630/2010 have been filed by the Chairperson: (1) to vacate the stay granted in M.P.No.1/2010, (2) for a direction to produce Thaneer for medical examination and (3) for a direction to hand over the child Thaneer to the Child Welfare Committee with immediate effect. M.P.No.5/2010 in Crl.R.C.No.630/2010 has been filed by Ms.Shaila Samuel to get her impleaded as party respondent in the said criminal revision case. 6. The point that arises for consideration in these criminal revision cases is:- "whether the challenge made to the impugned orders by the petitioners in both the criminal revision cases can be sustained?" https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.Abudukumar Rajarathinam, advocate representing Mr.S.Sathiaseelan, learned counsel on record for the petitioner in both the criminal revision cases, vehemently argued that the custody of the children Sweety and Thaneer by the respective petitioners in Crl.R.C.No.628/2010 and Crl.R.C.No.630/2010, could not be termed either unauthorised or illegal and that therefore the order passed by the Child Welfare Committee transferring the children to Balamandhir Adoption Unit and directing them to produce the children for being transferred to the said adoption unit, that too without affording an opportunity of being heard, could not be sustained in law and hence the order should be set side so far as it relates to the above said two children. The learned counsel for the petitioners in both the criminal revision cases submitted further that the children who were entrusted to the petitioners in both the criminal revision cases under pre-adoptive foster care arrangements had developed their roots in the family of the petitioners in both the criminal revision cases and separation of those children from the petitioners in the Crl.R.Cs would be detrimental to their interest and that if the best interest of the children were taken into consideration the impugned order of the Child Welfare Committee should not be given effect to. 8. Per contra, Mr.Rajan Babu representing M/s.Raji and Rajan, learned counsel for the first respondent in both the criminal revision cases, Mr.V.P.Raman, learned counsel for the second respondent in both the criminal revision cases and Mrs.Geetha Ramaseshan, learned counsel appearing for the third respondent in Crl.R.C.No.628/2010 contended that there were prima facie materials on which the Child Welfare Committee entertained a suspicion regarding the manner in which the children were brought to Cheshire Homes, which led to the lodging of a criminal complaint with the police against Ms.Shaila Samuel (the social worker attached to the second respondent), the doctors of Sheela Clinic, Coimbatore, Missionaries of Charity, Salem and Cheshire Homes, Thiruvanmiyur, Chennai and that under such circumstances alone the Child Welfare Committee, being the statutory body entrusted with the power and duty of protecting the welfare of the children in need of care and custody, had passed an order interim in nature for immediate transfer of the children to Balamandhir Adoption Unit pending a decision as to whether the children should be given in adoption to anybody and if so to whom they should be given in adoption; that when such is the case, the petitioners ought to have respected and complied with the order passed by the statutory body and pleaded before the statutory body for their preferential right to have the children given in adoption to them or for a further temporary custody pending a decision regarding adoption of those children; that instead of doing so, they chose a wrong path by approaching this court by way of the present criminal revision cases challenging the impugned order and that hence both the criminal revision cases should be dismissed. 9. It is the further contention of the respondents that the impugned order is appealable and an appeal could be filed before the Court of Session and without filing such an appeal, the https://hcservices.ecourts.gov.in/hcservices/ petitioners have approached this court by way of present criminal revision cases and on that ground also, the criminal revision cases should fail. The further contention of the respondents is that the minute details regarding the way in which the children have been brought to Cheshire Homes and later on entrusted with the petitioners under the Pre-Adoptive Foster Care arrangements cannot be gone into the criminal revision cases and that the future course of action regarding the custody of the children concerned in these Crl.R.Cs should be left to the decision of the statutory body, namely the Child Welfare Committee. 10. It is the contention of Mr.N.Chandrasekaran, learned counsel representing Mr.R.Shiva Kumar, learned counsel for the petitioner in M.P.No.6 of 2010 in Crl.R.C.No.628/2010, who is also the petitioner in M.P.No.5/2010 in Crl.R.C.No.630/2010, that she should be added as a party respondent for proper adjudication of the matter, since the impugned order came to be passed based on an assumption that the petitioner in the above miscellaneous petitions had committed some malpractice and since certain serious allegations have been made against her. 11. This court paid its anxious consideration to the submissions made on behalf of the parties. 12. The order impugned in these criminal revision cases is addressed to the second respondent to transfer all the six children with immediate effect to another adoption unit called Balamandhir Adoption Unit. Admittedly, in compliance with the order, four out of six children were transferred to Balamandhir Adoption Unit. Therefore, we are concerned with the implementation of the order in respect of the children named Sweety and Thaneer. Ms.Shaila Samuel, the petitioner in M.P.No.6/2010 in Crl.R.C.No.628/2010 and petitioner in M.P.No.5/2010 in Crl.R.C.No.630/2010 was an employee (now under suspension) of the second respondent employed as a social worker by the second respondent. The impugned order has not been passed against Ms.Shaila Samuel. As such she is not a necessary party and she is not a person who can be said to be aggrieved in any manner by the order of the Child Welfare Committee impugned in these criminal revision cases. Of course, it is true that the impugned order came to be passed on the suspected malpractice on the part of the social worker also. But the same is not germane to the field of consideration in these criminal revision cases. The said aspect has got to be dealt with by the police in the course of the investigation and also by the Child Welfare Committee while taking a final decision regarding the future of the children in question. Simply because certain allegations have been made against Ms.Shaila Samuel, she cannot become either a necessary party or a proper party to the criminal revision cases. She is not going to be either benefited or affected by an order to be passed in these criminal revision cases. Therefore, this court comes to the conclusion that the above said miscellaneous petitions, namely M.P.No.6/2010 in Crl.R.C.No.628/2010 and M.P.No.5/2010 in Crl.R.C.No.630/2010 are bound to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 13. A contention has been raised on behalf of the respondents questioning the maintainability of the Criminal Revision Cases. It shall be convenient and appropriate to take up the said contention for discussion before ever entering upon discussion regarding the other contentions. Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that an appeal shall lie to the Court of Session against any order passed by a competent authority under the Act. Here is a case in which the challenge is made against the order of the Child Welfare Committee. Therefore, it is quite obvious that the impugned order is an appealable order and the petitioners do have the remedy of filing an appeal before the Court of Session. However, they have not chosen to avail the said remedy of appeal. Of course Section 53 recites the revisional power of the High court against the orders of the Court of Session or the competent authority. But Section 54 refers to the procedure prescribed in Cr.P.C. as the procedure to be followed. The language used in Section 397 of Criminal Procedure Code and Section 401 of Criminal Procedure Code does not totally preclude the jurisdiction of the High Court or the Sessions Court to call for an examination of records of any proceedings before any inferior criminal court within its jurisdiction. But sub clause (2) of Section 397 provides an embargo on the exercise of such revisional power against any interlocutory order passed in any appeal, enquiry, trial or other proceedings. When remedy of regular appeal is available, the High Court shall not even exercise its inherent powers except for preventing abuse of process of law or miscarriage of such justice or to correct apparent error on the face of the record is found. Even otherwise, as contended on behalf of the respondents, the impugned order is not final and it is only an order providing interim measure till a decision to be taken at a later point of time after enquiry. Therefore, the impugned order can be said to be an interlocutory order against which a revision is barred under Section 397(3) Cr.P.C. The contention raised on behalf of the respondents regarding the maintainability of the criminal revision cases is bound to be countenanced. 14. It is true that the petitioner in Crl.R.C.No.628/2010 had got the custody of the child "Sweety" under a pre-adoptive foster care arrangement. Similarly, the petitioner in Crl.R.C.No.630/2010 had got the temporary custody of the child "Thaneer" under another pre-adoptive foster care arrangement. It is the contention of the learned counsel for respondents 1 and 2, which is also supported by the learned counsel for the third respondent in Crl.R.C.No.628/2010 that the Foster Care arrangements were made even before getting the children declared free for adoption and without following procedure and that such entrustment of temporary custody under the Foster Care arrangements before getting the children declared "free for adoption". Admittedly neither Sweety nor Thaneer has been declared "free for