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2012 Supreme(Online)(KER) 49236
HIGH COURT OF KERALA
P.Q.BARKATH ALI, J
BALACHANDRAN, SECRETARY ASSN OF ORHANAGE – Appellant
Versus
STATE OF KERALA & OTHERS – Respondent
CRIMINAL MISC. CASE 4804/2008
Orphanages registered under the Orphanages Act are not required to register again under the Juvenile Justice Act, which invalidates any coercive action taken for non-compliance.
Headnote:
Registration - Orphanages - Juvenile Justice (Care and Protection of Children) Act 2000 Sections 34(3), Orphanages and Other Charitable Homes (Supervision and Control) Act 1960 Sections 13, 14 - The court ruled that orphanages registered under the Orphanages Act do not need to re-register under the Juvenile Justice Act, as confirmed by a government order, and found the warrant issued by the Child Welfare Committee illegal.
Fact of the Case:
The petitioner, representing an association of orphanages, challenged the Child Welfare Committee's requirement to re-register under the Juvenile Justice Act after being summoned and subsequently issued an arrest warrant for non-compliance.
Issues: Whether orphanages registered under the Orphanages and Charitable Homes Act must re-register under the Juvenile Justice Act and the legality of a warrant issued by the Child Welfare Committee.
Ratio Decidendi: Existing registrations under the Orphanages and Charitable Homes Act exempt those institutions from needing to register again under the Juvenile Justice Act, and the Child Welfare Committee lacked authority to issue a warrant for registration compliance.
Final Decision: The petition is allowed, and the warrant against the petitioner is set aside.
O R D E R
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 Crl.M.C. No. 4804 of 2008 2 (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.
Crl.M.C. No. 4804 of 2008 3
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.”
Crl.M.C. No. 4804 of 2008 4 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 commencem
