N. Balachandran vs State of Kerala and Others

P.O. Barkath Ali, J.—The short question which arises for consideration in this petition u/s 482 of Criminal Procedure Code is whether orphanages and charitable homes which are registered under the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 have to be again registered u/s 34(3) of Juvenile Justices (Care and Protection of Children)Act 2000 as amended by Act 33 of 2006. Petitioner is the Secretary of Association of Orphanages and Charitable Homes in Kerala, Wayanad Branch. The second respondent is the Child Welfare Committee, Sulthan Bthery, Waynad District, represented by its Chairman which is constituted u/s 29 of Juvenile Justices (Care and Protection of Children) Act 2000. About 43 Orphanages and 19 Old age homes in Wayanad District are the members of the above mentioned association. It is registered under Orphanages and other Charitable Homes (Supervision and Control) Act of 1960. The second respondent issued a notice to the petitioner to register its organisation u/s 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000 as amended by Act 33 of 2006. The petitioner filed a detailed explanation. Thereafter the second respondent issued Annexure-Al summons asking the petitioner to appear before the committee. For which the petitioner filed Annexure-A2 explanation. Meanwhile the committee addressed to the Secretary to Government recommending to stop the disbursement of grants to the Children Homes in Wayanad District until they are registered u/s 34(3) of the Juvenile Justices Act, 2000. Challenging the said recommendation the petitioner filed Writ petition(c) No. 28307 of 2008 before this Court which is now pending. Wherein it has been directed that proceedings if any, taken by the Child Welfare Committee, shall be finalised except after getting orders from this Court. Meanwhile the second respondent issued an arrest warrant against the petitioner.

The petitioner contended that the second respondent has no authority to issue a warrant, that Section 87 of the Code of Criminal Procedure has to be complied with while issuing such a warrant. In this petition the petitioner requested to recall the said Arrest Warrant No. CWC 1/2008 dated October 16, 2008 issued by second respondent.

The second respondent filed a detailed counter stating that the Child Welfare Committee is acting as a Bench of Magistrate u/s 29(5) of the Juvenile Justices (Care and Protection of Children) Act 2000, that therefore the said committee is entitled to issue the warrant in question and that in spite of the notice petitioner did not appear before the committee which necessitated the issuance of the said warrant.

Therefore, the question for consideration is whether the Orphanages registered u/s 13 of the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 have to be again registered u/s 34(3) Juvenile Justices Act 2000.

That Sections 13 and 14 of the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 read thus:

Homes not to be run without certificate:

After the commencement of this Act no person shall maintain or conduct any home except under, and in accordance with, the conditions of a certificate of recognition granted under this Act.

Application for certificate: Every person desiring to maintain or conduct a home shall make an application for a certificate of recognition to the Board in such form and containing such particulars as may be prescribed.

Provided that a person maintaining or conducting a home at the commencement of this Act shall be allowed a period of three months from such commencement to make an application for such certificate.

Section 29 of Juvenile Justice Act reads thus:

Child Welfare Committee

(1) The State Government may, [within a period of one year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the Official Gazette, constitute for every district], one or more Child Welfare Committees for exercising the powers and discharge the duties conferred on such Committees in relation to child in need of care and protection under this Act.

(2) The Committee shall consist of a Chairperson and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on matters concerning children.

(3) The qualifications of the Chairperson and the members, and the tenure for which they may be appointed shall be such as may be prescribed.

(4) The appointment of any member of the Committee may be terminated, after holding inquiry, by the State Government, if-

(i) he has been found guilty of misuse of power vested under this Act;

(ii) he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;

(iii) he fails to attend the proceedings of the Committee for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year.

(5) The Committee shall function as a Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class.

Sub Section (3) of Section 34 as amended by Section 19 of Act 33 of 2006 reads thus:

((3). Without prejudice to anything contained in any other law for the time being in force, all institutions, whether State Government run or those run by voluntary organizations for children in need of care and protection shall, within a period of six months from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, be registered under this Act in such manner as may be prescribed.)

When the revision petition came up for hearing, the counsel for revision petition produced Annexure-A(4) Government Order dated 11.2.2010,

12/2010/

which says that the institutions registered under Orphanages and other Charitable Homes (Supervision and Control) Act need not again register u/s 34(3) of Juvenile Justices Act. In the light of Annexure-A4 Government Order an orphanage registered under the Orphanages and other Charitable Homes (Supervision and Control) Act need not again register u/s 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000 as amended by Act 33 of 2006. That being so, the warrant issued by the second respondent is clearly illegal and is liable to be set aside.

There is another aspect in this case. The learned Public Prosecutor argued that as the Child Welfare Committee shall function as a Bench of Magistrates the committee can issue warrant. I am unable to agree.

Sub Section 5 of Section 29 of the Act provides thus:

The committee shall function as a Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the First Class.

But for the purpose of registration u/s 34 (3) of the Act in my view warrant cannot be issued. This is not a penal provision. Further before issuing a warrant one must comply with the requirement of Section 87 of Cr.P.C. which has not been complied by the second respondent in this case.

That apart W.P.(c) No. 28307/2008(T) filed by the petitioner has been allowed by this Court on September 25, 2009 (as evidenced by a copy of the order produced) finding that if proceedings are to be initiated for compliance of Section 34(3) of Juvenile Justices Act such proceedings shall be initiated against individual organisations and not against petitioner in his capacity as the Secretary. That being so, the entire proceedings initiated against the petitioner by the second respondent u/s 34(3) of the Act will not stand and is liable to be set aside. Consequently the warrant issued against him also to be cancelled. For all these reasons the petition is allowed. The impugned warrant issued against the petitioner is set aside. It is hereby found that petitioner need not register u/s 34(3) of Juvenile Justices (Care and Protection) Act of 2000.