IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 13TH APRIL 2007 / 23RD CHAITHRA 1929 CRL.REV.PET.NO. 4423 OF 2006(C) ------------------------------- ( ORDER IN M.P.NO.46/06 DT. 08.12.06 OF PRL. MAGISTRATE, JUVENILE COURT (CJM), ERNAKULAM) REVN. PETITIONER: ------------------ JOSE MAVELI, DIRECTOR, JANA SEVA SISU BHAVAN, P.B.NO.107, ALUVA SETTLEMENT, ALUVA. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.BABU, S/O.VIJAYAN, 4/236, KULAIKUNNU NAGAR, CHENNAI. ADDL.R3. P.J.PETER, SECRETARY, JANASEVA SISUBHAVAN, P.B.NO.107, ALUVA SETTLEMENT, ALUVA. (ADDL.R3 IMPLEADED AS PER ORDER DATED 14.3.2007 IN CRL.M.A.3223/07). R1 BY PUBLIC PROSECUTOR (SRI.C.K.SURESH). R2 BY ADV. SRI.P.GOPAKUMARAN NAIR & BY ADV. C.S.DIAS R3 BY P.A.ANITHA AMICUS CURIAE SRI. GEO PAUL. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/04/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ----------------------------------------- C.R. CRL.R.P. NO. 4423 of 2006 ----------------------------------------- Dated this the 13th day of April, 2007 O R D E R “We are guilty of many errors and faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait. The child cannot; right now is the time his bones are being formed, his blood is being made and his senses are being developed. To him, we cannot answer `tomorrow'. His name is `today'” (Gabriel Mistral) Yes, I shall not wait. I cannot answer him, `tomorrow'. I must speak for him today. Each and every letter of the above quote must inspire me to speak for him today--his name is `today' !! FACTS, BRIEFLY: 2. Five minor children of different age, both male and female (I shall avoid mentioning their names in this judgment in their best interest), were produced before learned Chief Judicial Magistrate by the additional third respondent herein, under Section 32(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 ('the Act', for short), along with a report. According to additional third respondent, he is the Secretary of 'Jena Seva Sishubhavan' which is an Institution registered under the Travancore-Cochin [Crl.R.P.4423/06] 2 Literary, Scientific and Charitable Societies Act, 1955 which saves street children who are found begging, with the aid of the social workers and officials. It is averred that it aims to eradicate child begging and child labour. It is stated in the report filed by third respondent that all the five children were found begging, without any home or settled place or abode and any without any ostensible means of subsistence. 3. The additional third respondent therefore, sought for release of the children to the temporary care and protection of the Institution, where the third respondent is the Secretary. Other prayers are also made: (i) to transfer the children to any other juvenile home or special home as the court deems fit, for the welfare and safe custody of the children (ii) to pass any other order or direction which the court deems fit for the welfare of the children. 4. On production of the children along with a report, learned Magistrate, while acting as the Child Welfare Committee (`the Committee' for short), in the light of the decision of the Division Bench of this court (vide Parvathy v. Superintendent, Corporation Relief Centre (2002(1) KLT 523), passed the following order: “....They are now under the care and protection of Janaseva Sishubhavan, Aluva and they have no parents or relatives to look after or take care of now. Therefore, they are entrusted to Janaseva Sishubhavan for proper care and protection and rehabilitation until further orders pending enquiry”. (Emphasis supplied) [Crl.R.P.4423/06] 3 5. After about six months, a petition was filed by second respondent herein before the same Magistrate, claiming himself to be the father of the three female children, who were entrusted to the institution (they are named in the petition). He undertook that he would look after them and provide care and protection to them and also educate them at his native place. The second respondent made a request to give a direction to the Institution to release the children to him. 6. On receiving the petition, learned Magistrate ordered for production of documents. The second respondent produced certain photographs and documents. Thereafter, on his being satisfied that second respondent is the father of the three children, impugned order was passed by learned Magistrate , directing petitioner herein to release the children forthwith to second respondent. The said order is challenged by the Director of the institution, who is not a party to the proceedings before the Magistrate/Committee, on various grounds. 7. While learned counsel for petitioner would vehemently argue that the Institution is entitled to retain the children in their custody, in the best interest of the children, learned counsel for second respondent strongly contended that second respondent, being the father, has the exclusive right to have the children in his custody and control. It was also pointed out that the Institution illegally denied to second respondent, his lawful right to have custody of his children or even access to them. [Crl.R.P.4423/06] 4 8. On going through the records and on hearing both sides, I am satisfied that the entire proceedings are fraught with many illegalities. The errors commenced from the very inception, starting from the production of the children before learned Magistrate and thereafter, at every step taken in the matter. The Institution as well as learned Magistrate did not follow the various provisions of the Act and Rules, which are intended for the benefit of the children. I find striking errors, illegalities and impropriety at every stage of the matter. I shall deal with them in detail, one by one. PRODUCTION OF THE CHILD: 9. When a “child in need of care and protection”, is received by a person or organisation, such person/organisation shall comply with certain provisions of the Act and the Kerala Juvenile Justice (Care and Protection of Children) Rules, 2003 (`the Rules', for short). Rule 10(2) of the Rules provides as to how a child is to be dealt with, on his/her reception, by a person/organisation. The relevant portion from Rule 10(2) of the Rules can be extracted as hereunder: “Section 10. Procedure for Production of a Child before the Committee.-- (1) xxxxxxxxx (2) (i) When a person/organization mentioned in sub rule (i) above receives a child in need of care and protection, he shall produce the child before the Committee with a report of the circumstances under which he has received the child. Such children, above five years of age, shall be produced before the Committee within the shortest possible time but not later [Crl.R.P.4423/06] 5 than twelve hours of such reception, excluding the journey time. For children under five years of age, the person/ organization shall send a written report along with the photograph of the child, within twenty four hours of reception, excluding the journey time after admitting the child in a nearby Foundling Home/Placement Agency ii) xxxxxxxxx iii) In case a Recognised Voluntary Organisation takes a child to the Committee, they shall also submit a report on the circumstances under which the child came to its notice, and efforts shall be made by them for tracing the family”. 10. It is laid down in Rule 10(2)(i) of the Act that when a person/organisation receives a “child in need and care of protection”, and if such child is above the age of five years, it shall be produced before the Committee, within shortest possible time, but not later than twelve hours of such reception, excluding the journey time, as per Rule 10(2)(i). For children under five years of age, the person/organisation shall send a written report, along with the photograph of the child, within twenty four hours of reception, excluding the journey time after admitting the child in a nearby Foundling Home/Placement Agency. 11. But, the Institution herein has not complied with the above mandate of law. Though the children are alleged to be 'in need of care and protection' and at the time of their reception by the Institution, they admittedly belonged to the age-group of below and above 5 years, they [Crl.R.P.4423/06] 6 were produced before the Magistrate only two long years, thereafter. As per the averments in the revision memo, the children were received by the Institution in 2004 but they were produced only in 2006. This is in clear violation of Rule 10(2)(i) of the Rules. The unduly long period of detention of the children at the Institution, without their production before the authority concerned under the Act not only violates the express provisions contained in the Rules, but it also has affected the interest of the children adversely. Because, the very purpose of the legislation is to “restore” the children to parents, parental environment, (based on the universally accepted child- rights), but, the children were denied such precious rights, for three long years. 12. Learned Magistrate also failed in his duty to ascertain whether the relevant provisions are complied with or not, while the children were produced. Before passing an order in respect of the children produced before the Magistrate, he shall confirm that the person or organisation who received the 'child in need of care and protection' has acted in accordance with the mandatory provisions and other relevant provisions of the Act and Rules and nothing has occurred to him affecting his rights. But, that was not done in this case. FAMILY NOT TRACED: 13. Rule 10(2)(iii) of the Rules extracted above provides that in case, a Recognised Voluntary Organisation takes a child to the Committee, efforts shall be made by them for tracing the family. But, the report submitted at [Crl.R.P.4423/06] 7 the time of production of the children by additional third respondent (who was the secretary of the Institution) does not reveal that any efforts were made by the Institution to trace the family of the children. On the other hand, even the fact that the children were removed from the custody of second respondent (who claims to be the father) and other family members was suppressed, for reasons best known to the office bearers of the Institution. 14. It is clear from records that in all probabilities, this is not a case where office bearers of the Institution must have been totally unaware of the children's family details. It is stated in the revision memo itself that the “children's mother is no more”. In such circumstances, why did the Institution make no enquiry to confirm whether second respondent is the father ? Even though second respondent claims to be the father, and this fact is not specifically denied in the pleadings, why does petitioner pretend ignorance now, about the whereabouts of second respondent, who claims to be the father? 15. The attitude of petitioner appears to be quite strange and uncomprehensible. It is totally unjustifiable also, on any scale. In all fairness, petitioner or additional third respondent ought to have disclosed whatever details are known to them, at least to this court, if they are genuinely interested in the welfare of the children. They are, in fact, bound to disclose such details as per law. But, they seem to play the game of a tough rival custodian, who fights for the exclusive custody of the children [Crl.R.P.4423/06] 8 against a legal guardian. Quite surprisingly, an argument is also raised that the burden is upon second respondent to prove that he is the father, while the provisions in the Rules themselves mandate that the Organisation shall make efforts to trace the family, which include the father. 16. The Institution had more than enough time to confirm and report to the court whether second respondent is the father/guardian of the children. The children were in their custody since 2004 onwards. But, they have not done anything to comply with Rule 10(2)(iii). Instead, they deliberately suppressed the relevant details about the family. 17. It is not enough for an Institution to make an attractive claim that a child is well-fed, well-clothed and well-educated by the Institution. That alone may not cater the needs of a child which the law-makers dreamt of and also intended, as per the provisions of the relevant Statute. They have other duties to discharge, in the interest of the welfare of the children. But, they miserably failed to discharge their duties, in accordance with law. “ RESTORATION” IS PRIME OBJECT: 18. The prime object of the Act is to restore the child to parents and parental environment. Section 39 of the Act reads as follows: "Section 39. Restoration.—(1) Restoration of and protection to a child shall be the prime objective of any children’s home or the shelter home. (2) The children’s home or a shelter home, as the case may be, shall take such steps as are considered necessary for the restoration of and protection to a child [Crl.R.P.4423/06] 9 deprived of his family environment temporarily or permanently where such child is under the care and protection of a children’s home or a shelter home, as the case may be. (3) The Committee shall have the powers to restore any child in need of care and protection to his parent, guardian, fit person or fit institution, as the case may be, and give them suitable directions. Explanation.—For the purposes of this section “restoration of child” means restoration to— (a) parents; (b) adopted parents; (c) foster parents. 19. As per section 39 of the Act, in the case of a child who has a parent or guardian, the Children's Home to which the child is sent (vide also section 33 of the Act), shall take such steps as are necessary for the restoration and protection of a child, who is deprived of his family environment, temporarily or permanently. In the absence of Children's Home, if the child is sent to a person/institution, naturally, such person/Institution shall also have the same statutory duties and liabilities to restore the child, as stated in section 39 of the Act. 20. The Committee also has powers under section 33 of the Act to restore the "child in need of care and protection" to his parent, guardian etc., and give them suitable directions. As per Explanation to section 39, “restoration of child” means restoration to a) parents; b) adopted parents; c) foster parents. But, neither the Institution nor the Committee/Magistrate [Crl.R.P.4423/06] 10 took any steps for “restoration” of the children as laid down in section 39 of the Act, except by observing that the children are entrusted to the Institution for 'rehabilitation' etc. Nothing more was done, though much is to be done under the Act. The failure to comply section 39 of the Act resulted in the children being kept away from their home, close relatives and parental environment for about three long years, which is not at all intended by the Act. NO STEPS TO RETURN CHILD: 21. It is submitted by learned counsel for second respondent that second respondent, in fact, approached the Institution on several occasions with requests to return the children to his custody, he being their father. But all those requests were illegally and mercilessly turned down by the Institution, it is contended. Ultimately, second respondent had no other alternative than to approach learned Magistrate for getting their custody. 22. As per the relevant provisions of law, the Organisation who receives a 'child in need of care and protection' is bound to take all necessary steps to trace out the family of the 'child in need of care and protection' to his/her parent. The Institution to which the child is sent by the Committee shall also take all steps for restoration of the children to the parents, foster parents or adopted parents. Rehabilitation shall also be effected, as stated in the Act. But, the Institution did not care to take any step in these lines. [Crl.R.P.4423/06] 11 REHABILITATION: 23. The Act also contemplates “rehabilitation” of the children, as laid down in section 40 of the Act. As per section 40, the rehabilitation and social integration of a child shall begin during the stay of the child in the Children's Home or Special Home, and social reintegration of children and rehabilitation shall be carried on alternatively by adoption, foster care, sponsorship and sending the child to an after-care organisation. 24. Any other person/Institution to which the “child in need of care and protection” is sent, naturally, shall also be bound to take steps for rehabilitation of the child. But, no such steps were taken by the Institution in this case. Even though learned Magistrate specifically ordered that the children are "entrusted to Janaseva Sishubhavan for proper care and protection and 'rehabilitation' until further orders pending enquiry”, nothing was done by the Institution. There is no explanation for non-compliance of this direction. 25. Even at this stage of revision, the Institution appears to be unwilling to attempt any 'rehabilitation'. On the other hand, petitioner strongly resists the children being handed over to second respondent who claims to be their father. The Institution appears to be not prepared even to confirm whether he is the father or guardian of the children, to whom they can be safely released to. At least, when a person claims children's custody, the Institution ought to have made enquiries about such person and confirmed whether he is a fit person with whom the children can be sent. [Crl.R.P.4423/06] 12 But, none at the Institution seems to be bothered to trace out the parents and restore or rehabilitate the children, despite the very long period of institutional detention of the children, which is obviously, illegal. 26. The fact whether second respondent is actually the parent or not, could have been easily ascertained from the children themselves. The children are of such age that they can state whether second respondent is treated as their father or not. The matter need not be magnified as a case involving paternity dispute. No paternity test need be insisted upon. The Institution may be able to conclude from the version of the children itself, whether second respondent is a fit person to whom the children can be released. Their untutored words can safely be acted upon, if those are found to be acceptable. The aim of the Institution must be to put the children in “parental environment”, in tune with the object of the Act and not to make a unsustainable claim over the children for permanent custody. 27. It is enough if the Institution or Committee, as the case may be, is prima facie satisfied that the person claiming the children is the parent or guardian and that he is not disqualified in any manner to have custody of the children. It is enough if such person is willing to take care of the children and foster them and act in the best interest of the welfare of the children. The children can be released to such person, without any delay, at least as a fit person, until conclusion of the inquiry under section 33 of the Act and other relevant provisions. (Vide Rule 11 also). [Crl.R.P.4423/06] 13 28. Learned Magistrate/Committee failed to take any steps to “restore” the children to parental, adopted, foster care as required. But, he appears to have acted blindly on a report (submitted by third respondent), which is bereft of the essential details. The children were sent to the Institution, without considering any of the relevant facts. REPORT UNDER SECTION 32: 29. The report filed by third respondent in this case is also not in accordance with law. As per section 32 read with Rule 10(2)(iii) of the Rules, a report on the “circumstances under which the child came to its notice” shall be produced along with the child before the Magistrate/Committee. Though a report is filed in this case by additional third respondent, it does not amount to a report “on the circumstances under which the children came to the notice” of the Institution. It does not disclose the relevant details. 30. The expression, "circumstances" means 'the surroundings of an act', as per Law lexicon by P. Ramanatha Aiyar, reprint edition, 1992. It also means 'the particulars which accompany an act'. The word "circumstances" is explained in Salter v. State (163 Ga. 80, 135 S. E. 409) also as, "related or accessory facts, occurrences or things which stand around, or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify a principal fact or event, (vide Black's Law Dictionary Forth edition). 31. Thus, the report shall contain a statement of the particulars which closely precede, surround and follow the back ground in which the child came [Crl.R.P.4423/06] 14 to the notice of the person/organisation. It must reveal the related or accessory facts, occurrences or things which stand around, or about, which attend upon, which closely precede or follow, which surround and accompany the reception of the child by the person or organisation. The report must also show in detail, the date, time and place where the child who is allegedly 'in need of care and protection' came to the notice of the person/Institution. It must state with whom or under what circumstances the child was found and received at the Institution. The relationship of the child with the person with whom the child was found also may be ascertained and reported. 32. It must be narrated in the report, in what state, the child was found. The report shall disclose whether the child has a home, close relative, parent or guardian and whether any attempt was made to trace them out. The report shall also reveal in whose custody the child was kept, on receipt of the child, and till its production before the Committee. It shall also state whether he/she is produced within the stipulated time prescribed by the statute and if not produced within such the time, the reason for non- production of child before the Committee. In short, a concise statement of all the relevant facts closely preceding, surrounding and following the reception of the child must be stated in the report. Then alone it would become a report by the Institution, “on the circumstances under which the child came to its notice”, as required by law. The purpose of the report is to aid the Committee to take a right decision in respect of the child. It is also to help the Committee to conclude whether the child produced before the [Crl.R.P.4423/06] 15 Committee is a 'child in need of care and protection', so as to exercise its jurisdiction under the Act. 33. Though the children in this case were received at the Institution as early as in 2004 (two years prior to the production of the children before the Committee) as revealed from the revision memo, such important fact is not mentioned in the report. Though it is clear from the revision memo that the children were taken away from the custody of second respondent, (who now claims to be the father of the children) and that they were found in a circus troop etc., such facts are not stated in the report. Instead, it is made to appear, as per the report that those children are street children, without a home, means, parent, family or guardian. There is only a bare allegation that the children were found begging, without a home etc. and that some people took them to Institution. 34. The date, time and place at which the children were found, the person with whom the children were found, the person who brought them to the Institution etc., are also not stated. Though the fact whether the children have a parent or guardian is the most relevant factor, it was not brought to the notice of the Committee that they were removed from the custody of second respondent, who claims to be the father. Absolutely no mention is made in the report about second respondent. The report is, thus, misleading and without the essential details, as required by law.