Dismissed

Society for Human Advancement and Promotion of Employment v. the State of Assam and 5 Ors.

Gauhati HC18 Apr 2022WA/135/2019

Case brief

AI extract

What is this about?

This appeal was dismissed on the ground of alternative remedy. The High Court held that the appellant, an NGO whose registration as a Child Care Institution was cancelled by the State Child Protection Society, must first avail the statutory appeal under Section 101 of the Juvenile Justice Act, 2015 before approaching this Court.

What did the court decide?

Dismissed the writ appeal on the ground of alternative remedy.

Society for Human Advancement and Promotion of Employment Vs the State of Assam and 5 Ors. — Gauhati HC (2022) — LawSathi Research

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GAHC010092542019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA/135/2019

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SOCIETY FOR HUMAN ADVANCEMENT AND PROMOTION OF EMPLOYMENT

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COMMONLY KNOWN AS SHAPE, AN NGO REGISTERED AS A SOCIETY UNDER THE SOCIETIES REGISTRATION ACT, 1860, HAVING ITS REGISTERED ADDRESS AT BG ROAD, SIVASAGAR TOWN UNDER P.O. AND P.S. SIVASAGAR, DIST.- SIVASAGAR, ASSAM, REP. BY ITS SECRETARY I/C SRI ANANTA SAIKIA.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REP. BY THE COMMISSIONER AND SECRETARY, DEPARTMENT OF SOCIAL WELFARE, GUWAHATI-5, ASSAM.

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2:THE DIRECTOR OF SOCIAL WELFARE UZANBAZAR GUWAHATI-1 ASSAM.

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3:THE STATE CHILD PROTECTION SOCIETY ASSAM

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REP. BY ITS MEMBER SECRETARY BELTOLA GUWAHATI-28 ASSAM.

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4:THE DEPUTY COMMISSIONER CUM CHAIRMAN DISTRICT CHILD PROTECTION COMMITTEE

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SIBSAGAR ASSAM.

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5:DISTRICT CHILD PROTECTION OFFICER

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SIBSAGAR ASSAM.

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6:THE CHILD WELFARE COMMITTEE (CWC)

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HAVING ITS OFFICE AT DISTRICT CHILD PROTECTION UNIT SIVSAGAR NEW COLONY WEST JAMUNA ROAD WARD NO. 2 SIVSAGAR ASSAM

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Advocate for the Petitioner : MR G CHOUDHURY

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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ORDER

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Date : 18.04.2022

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Heard Mr. G. Choudhury, learned counsel for the appellant/writ petitioner. Also heard Mrs. R.B. Bora, learned Junior Government Advocate, Assam, appearing for the respondents.

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The appellant/writ petitioner before this Court has challenged the order dated 03.04.2019 passed by the learned Single Judge in WP(C) No.2212/2019, whereby the case has been referred to the Division Bench. The said writ petition had been filed challenging the order dated 20.03.2019 passed by the Member Secretary, State Child Protection Society, Assam cum Secretary to the Government of Assam, SWD, by which the registration given to Swapnalaya Children Home under the Juvenile Justice (Care and Protection of Children) Act,

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2015 read with the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 has been cancelled with a further direction not to release any fund to the appellant/writ petitioner.

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The appellant/writ petitioner, which is an NGO, runs a Child Care Institute at Sivsagar, namely, Swapnalaya Children Home. There was an allegation that in this Child Care Institute, which was to function as a protection home for children, a female child was abused and the exploitation was done by the Secretary of the present NGO. Consequently, by the aforesaid order dated 20.03.2019, the registration of the Child Care Institute was cancelled and an FIR was also lodged against the Secretary of the Institute.

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Against the cancellation of the registration, the appellant/writ petitioner had filed a writ petition before this Court but, as already referred above, the learned Single Judge of this Court before whom the writ petition was filed was of the opinion that since this Court has already taken cognizance of the matter relating to the abuse of a child victim in that Child Care Centre in a public interest litigation [PIL (Suo Moto) No.1/2019], the matter was referred to this Court. Today, this case is listed before this Court along with the above public interest litigation.

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Order dated 20.03.2019, by which the registration of the Child Care Institute was cancelled, reads as under:-

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“ Order

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In view of the statement of a Girl Child, aged about 12 years inmate of the Swapnalaya Children Home, situated in Sivsagar, before the DCPO, CWC, representative of District Administration, Counsellor and Members of ASCPCR about molestation, sexual harassment and rape by the Superintendent of the Home in the name of love and affection & also in the view of the Report of the Department of psychology, Gauhati Medical College

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& Hospital, after 15 days continuous observation of the mentioned victim Girl Child, which states – ‘on mental status examination during her hospital stay, she was conscious, oriented & cooperative. She was maintaining her personal hygiene well and was dressed appropriately. No behavioural abnormality was observed except few crying spells while describing her stories. Her mood was mostly anxious and depressed at time. Her concentration was normal, memory was intact, intelligence was average and judgement/reasoning was intact and she had insight to her problem. The report has an opinion to give her regular follow up, psychological counselling’, it has been clearly established that the Home authority has totally failed to provide her counselling, child friendly environment, protective environment, during her stay in Children Home Swapnalaya. The Superintendent himself was involved in violation of Child Right committing the activities like molestation, rape, sexual harassment, sexual abuse which were repeatedly reported by the Girl Child in her statements at various stages.

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Sexual Abuse of a child in Institutional care by the Care Givers is a heinous offence & falls under Section 7 (Sexual harassment) Section 9 (aggravated sexual assault) and Section 11 (Sexual harassment) of the Prohibition of Children from Sexual Offences Act. The statement of the victim child is sufficient to be prosecuted the accused under the said provision of the Act.

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In view of the seriousness of the matter & for the best interest of the children and to protect the right of the children as per the mandate of the JJ Act 2015 & in reference of the Rule 21(7) of Juvenile Justice (Care & Protection of Children) Model Rule 2015 due to failure to maintain minimum standard of care and unsatisfactory compliance with care, protection, rehabilitation & reintegration, the registration of Swapnalaya under Section 41 of JJ Act 2015, as Child Care Institution (Children Home & Special Adoption Agency) is hereby cancelled. Henceforth, no fund will be released to the NGO in the name of any activities under JJ Act.

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Member Secretary State Child Protection Society, Assam Cum Secretary to the Govt. of Assam, SWD”

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There is a provision for appeal as contained in Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and, therefore, the above order of cancellation can very well be challenged before the Appellate Authority. Section 101 reads as under:-

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“ 101. Appeals.— (1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the

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Children's Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate:

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Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days.

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(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section 15 of the Act, before the Court of Sessions and the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance has been obtained by the Board in passing the order under the said section.

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(3) No appeal shall lie from,—

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(a) any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than the heinous offence by a child who has completed or is above the age of sixteen years; or

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(b) any order made by a Committee in respect of finding that a person is not a child in need of care and protection.

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(4) No second appeal shall lie from any order of the Court of Session, passed in appeal under this section.

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(5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973.”

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After hearing the learned counsel appearing for the parties, we are of the considered view that the appellant/ writ petitioner has a statutory remedy which must be availed before coming to this Court.

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The writ appeal is dismissed on the ground of an alternative remedy.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Society for Human Advancement and Promotion of Employment v. the State of Assam and 5 Ors.

Case brief

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Society for Human Advancement and Promotion of Employment v. the State of Assam and 5 Ors.

Case brief

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