IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(Crl.).No. 193 of 2010(S) --------------------------- PETITIONER(S): --------------- AMBIKA, D/O.APPUNNI, SUGANDHA GIRI ESTATE, 4TH UNIT, VYTHIRI, WAYANAD. BY ADV. SRI.NIRMAL. S RESPONDENT(S): --------------- 1. CHILD WELFARE COMMITTEE, MALAPPURAM, REPRESENTED BY ITS CHAIRPERSON, OFFICE:GOVT. OBSERVATION HOME, TAVANUR, KUTTIPURAM, THRIKKANAPURAM P.O., MALAPPURAM, PIN-679 673. 2. THE CHIEF WARDEN/OFFICER, JUVENILE HOME FOR GIRLS, VELLIMADUKKUNNU, CALICUT. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) No. 193 of 2010 ---------------------------------------- Dated this the 30th day of June 2010 J U D G M E N T Basant,J The petitioner is the mother of a child aged about 10 years now (date of birth : 09/02/2000). Ext.P4 order (that is order dated 28/01/2009 in Crl.M.C.No.4482/08) was passed by this Court when the petitioner came to this Court earlier complaining about the detention of her child. That proceedings were initiated challenging Ext.P3 order. This Court had directed the learned Chief Judicial Magistrate, who, at that time was exercising the powers of the Child Welfare Committee to dispose of the matter (C.M.P.No.27/08 pending before the learned Chief Judicial Magistrate in his capacity as the Juvenile Court/the Child Welfare Committee). The learned Chief Judicial Magistrate exercising the powers of the Child Welfare Committee was directed to dispose of the matter afresh under Section 33 of the 'The Juvenile Justice (Care and Protection of Children) Act, 2000' (hereinafter referred to as the JJ Act). W.P.(Crl) No.193/2010 2 2. We are surprised to note that the said petition was not disposed of till 16/6/2010, in spite of the mandate of Section 33 (2) of the JJ Act that such a matter must be disposed of within a period of four months. 3. Be that as it may, the petitioner came to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce her minor daughter Anagha.A.S alias Shahana alias Chinchu, who, according to her, was being detained illegally at the Juvenile Home for Girls. 4. A report was called for from the Child Welfare Committee and it is now reported that on 16/6/2010, final orders have been passed by the Committee under Section 33 of the JJ Act. 5. The petitioner is aggrieved by the order of the Child Welfare Committee dated 16/6/2010. He raises various contentions against the said order. It is submitted that there has been no proper disposal of the petition by the Child Welfare Committee. Various grounds of challenge are raised against that order. W.P.(Crl) No.193/2010 3 6. This petition was filed initially for issue of a writ of habeas corpus describing the continuance of the minor child of the petitioner with the second respondent herein to be illegal and unjustified. The petitioner's child was produced before the Child Welfare Committee (Chief Judicial Magistrate, who was exercising the functions of the Child Welfare Committee at that time). Though belatedly, orders under Section 33 has now been passed by the Child Welfare Committee on 16/6/2010. We must, in these circumstances, assume that the relief of the petitioner lies elsewhere. The petitioner can prefer an appeal under Section 52 of the JJ Act. In the wake of the specific provision for appeal under the JJ Act, we find no merit in the continuance of this writ petition. In the wake of the right of appeal under Section 52 of the JJ Act, we find absolutely no justification in the attempt to challenge the subsequent order dated 16/6/2010 before this Court. The petitioner must invoke her rights under Section 52 of the JJ Act and institute an appeal against the order dated 16/6/2010. She has not done the same so far, it is conceded. W.P.(Crl) No.193/2010 4 7. We note that the Child Welfare Committee, in the order dated 16/6/2010, has already permitted the petitioner to visit the child between 2.30 p.m and 3.30 p.m on all Sundays. We thus find that provision for visitation has already been made by the Child Welfare Committee. It will, of course, be open to the petitioner in such appeal to be preferred by her under Section 52 of the Act to seek appropriate interim directions. We need only mention that the learned Sessions Judge dealing with the appeal under Section 52 of the JJ Act must consider the prayer for any such interim orders expeditiously and in accordance with law. No further or better observations appear to be necessary. 8. We record the submission of the learned Government Pleader that copy of the District Probationary Officer's report which was agreed to be handed over vide order dated 21/6/2010 has not been handed over in view of the provision under Section 51 of the JJ Act. We may observe that it shall be open to the petitioner to make proper request before the appellate authority that copy of the same should be furnished under the proviso to Section 51. Appropriate orders must be passed by the appellate W.P.(Crl) No.193/2010 5 court on that aspect also. 9. Yet another grievance is raised by the petitioner that a certified copy of the order dated 16/6/2010 has not been furnished to the petitioner. A photo copy of the same has been furnished to the counsel. The learned Government Pleader submits that a proper copy has been sent to the petitioner by post by the Child Welfare Committee. Considering the peculiar facts and circumstances of this case, we direct that an appeal under Section 52 shall be entertained by the appellate court that is the Court of Sessions, if the appeal is preferred along with photo copy of the order dated 16/6/2010 which is furnished to the learned counsel for the petitioner duly certified by the learned Government Pleader. 10. In the result, this writ petition is dismissed with the above observations leaving it open to the petitioner to challenge the order dated 16/6/2010 by a properly instituted appeal under Section 52 of the JJ Act. We accept the submission of the counsel and further observe that it shall be open to the petitioner to seek appropriate interim directions/relief from the Appellate Court after filing such appeal under Section 52 of the W.P.(Crl) No.193/2010 6 Act. Needless to say, any such application for interim directions must be considered by the appellate court and appropriate orders passed expeditiously. 11. The Child Welfare Committee having already made provisions for visitorial rights for the petitioner, we are not persuaded to issue any further interim directions before appeal is filed and orders are sought from the appellate court. 12. We take note of the helpless plight of the petitioner. We direct the appellate authority who is the Sessions Judge, Malappuram to dispose of such appeal under Section 52 of the JJ Act as expeditiously as possible - at any rate within four months of the date of presentation. We further direct the Sessions Judge, Malappuram to dispose of the appeal on merits without resorting to the course of remand. If there be inadequacy of material the appellate authority under Section 52 (i.e. the Court of Sessions) shall dispose of the appeal by admitting further evidence. These directions are being issued considering the very peculiar facts, particularly the fact that the child is in institutional custody from 21/5/2009. W.P.(Crl) No.193/2010 7 13. Hand over copy of this order to the learned counsel for the petitioner straight away for production before the appellate court along with the appeal. Registry shall communicate the judgment to the learned Sessions Judge, Malappuram. Compliance shall be reported to this Court by the learned Sessions Judge. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr