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2012 Supreme(Ker) 161
High Court of Kerala
P.Q. BARKATH ALI
N. Balachandran, Secretary, Association of Orphanages Mananthavady
Versus
State of Kerala,Represented by The Secretary To Government, Trivandrum & Others
Crl.MC.No. 4804 of 2008
Decided On : 15-02-2012
For the Petitioner:MR. K.M. Firoz, Advocate.
For the Complainant (s): MR. Noushad Thottathil, Public Prosecutor.
Orphanages registered under the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 need not re-register under Section 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000. Warrants must comply with the requirements of the Code of Criminal Procedure.
Headnote:
Orphanages - Registration under Juvenile Justices Act - Orphanages and other Charitable Homes (Supervision and Control) Act 1960, Juvenile Justices (Care and Protection of Children) Act 2000 - Sections 13, 14, 29, 34(3) - The court held that orphanages registered under the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 need not again register under Section 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000. The warrant issued against the petitioner was set aside as it was found to be illegal and not in compliance with the Code of Criminal Procedure. The court also found that the proceedings initiated against the petitioner under Section 34(3) of the Act were not valid and should be set aside.
Fact of the Case:
The petitioner, Secretary of Association of Orphanages and Charitable Homes in Kerala, challenged the requirement for orphanages registered under the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 to be again registered under Section 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000. The second respondent, Child Welfare Committee, issued an arrest warrant against the petitioner for non-compliance.
Finding of the Court:
The court found that the warrant issued against the petitioner was illegal and set it aside. It also held that the petitioner need not register under Section 34(3) of Juvenile Justices (Care and Protection) Act of 2000.
Issues: The main issue was whether orphanages registered under the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 have to be again registered under Section 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000.
Ratio Decidendi: The court relied on the provisions of the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 and Juvenile Justices (Care and Protection of Children) Act 2000 to determine that orphanages need not re-register under Section 34(3) of the latter Act. It also emphasized the need for compliance with the Code of Criminal Procedure in issuing warrants.
Final Decision: The petition was allowed, and the warrant issued against the petitioner was set aside. The court found that the petitioner need not register under Section 34(3) of Juvenile Justices (Care and Protection) Act of 2000.
1. The short question which arises for consideration in this petition under Section 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 under Section 34(3) of Juvenile Justices (Care and Protection of Children) Act 2000 as amended by Act 33 of 2006.
2. 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 under Section 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 under Section 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-A1 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 under Section 34(3) of the Juvenile Justices Act, 2000. Challenging the said recommendation the petitioner filed Writ petition) 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.
3. 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.
4. The second respondent filed a detailed counter stating that the Child Welfare Committee is acting as a Bench of Magistrate under Section 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.
5. Therefore, the question for consideration is whether the Orphanages registered under Section 13 of the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 have to be again registered under Section 34(3) Juvenile Justices Act 2000.
6. That Sections 13 and 14 of the Orphanages and other Charitable Homes (Supervision and Control) Act 1960 read thus:
"13. 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.
14. 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
