Allowed

Shaila Samuel v. Parveen Babu

Madras HC19 Jul 2016CRL RC/1195/2014

Case brief

AI extract

What is this about?

A social worker challenged Child Welfare Committee directions for criminal action concerning alleged illegal adoption. The Court held that the directions exceeded the Committee's powers on these facts and violated natural justice. It allowed the revision, set aside the Sessions Court's order and held the appeal maintainable.

What did the court decide?

Sessions Court's order in Crl.M.P.No.1147 of 2013 set aside; appeal in C.A.No.206 of 2011 held maintainable.

Shaila Samuel Vs Parveen Babu — Child Custody and Guardianship | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 19.07.2016

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CORAM

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR

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CRL.R.C.No.1195 of 2014

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Shaila Samuel ... Petitioner/R1/Appellant

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vs. 1. Parveen Banu ...R1/Petitioner/R2

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Child Welfare Committee rep. by Dr.P.Manorama - its Chairperson M.N.Regis - Member S.Ramalingam - Member Virgil D'Sami - Member A.Anbarasu - Member ...2nd Respondents/R2/R1

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PRAYER: Criminal Revision Case filed under Sections 397 and 401 of Criminal Procedure Code to set aside the order dated 24.09.2014 in Crl.M.P.No.1147 of 2013 in C.A.No.206 of 2011 on the file of the learned 1st Additional Sessions Judge, Chennai.

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For Petitioner : Mr.T.Mohan For Respondents: Mr.T.R.Rajagopalan (for R2) Special Government Pleader JUDGMENT

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Challenge in this revision is to an order made in Crl.M.P.No.1147 of 2013 in C.A.No.206 of 2011 dated 24.09.2014 on the file of the learned 1st Additional Sessions Judge, Chennai, by which the Court below has dismissed the appeal.

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Facts leading to the revision are that Crl.M.P.No.1147 of 2013 has been filed by Praveen Banu, biological parent of Sweety under Section 52(2)(b) of Juvenile Justice (Care and Protection of Children) Act, 2000, to consider the maintainability of the appeal viz., C.A.No.206 of 2011 filed against the order passed by the Child Welfare Committee in File No.4 of 2010, as a preliminary issue. Consequently, she has prayed to dismiss the appeal. Crl.M.P.No.1148 of 2013 has been filed to direct the appellant Ms.Shaila Samuel, to add new members of the Child Welfare Committee as parties in C.A.No.206 of 2011.

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Common averments as summarised are that the appellant Ms.Shaila Samuel is not an aggrieved person by the order made by the Child Welfare Committee in F.No.4 of 2010 dated 10.05.2011 and her involvement in the illegal adoption is clearly mentioned in the order which directed restoration of the child Sweety now named as Asreen Banu, to the petitioner/Praveen Banu, under Sec.39 of Juvenile Justice (Care and Protection of Children) Act, 2000. Praveen Banu / Petitioner in Crl.M.P.Nos.1147 and 1148 of 2013 in C.A.No.206 of 2011 has further contended that due to timely intervention of Child Welfare Committee, child was restored to the mother. Child Welfare Committee unearthed certain facts about, cheating, fraud, trafficking and criminal conspiracy in relation to illegal adoption and directed the Commissioner of Police to initiate action against the appellant Ms.Shaila Samuel, worker of Guild of Service. After receiving DNA test report and after enquiry, Child Welfare Committee held that the child was placed under pre adoptive foster care under Ms.Jemma D'Silva, a senior officer in the department of Social Welfare, illegally. Guild of Service has dismissed Ms.Shaila Samuel, appellant from service. On the above averments, Praveen Banu, biological parent, has prayed for dismissal of the appeal, filed by Ms.Shaila Samuel.

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Objecting to the prayers sought for Ms.Shaila Samuel, appellant in C.A.No.206 of 2011 and respondent in Crl.M.P.Nos.1147 & 1148 of 2013, has submitted that Child Welfare Committee is a committee to look into the matters relating to children who are in need of care and protection and who are in conflict of law. The child Sweety was born on 15.09.2005. She was left in Sheela Hospital on 17.09.2005 by her parents, since she had poly cyst kidney. Parents surrendered the child with the Missionaries of Charity, Coimbatore, by giving their self declaration on a stamp paper dated 17.09.2005, purchased in their name and signed by both of them. Since Child Welfare Committee passed an order dated 10.05.2011, without hearing the appellant Ms.Shaila Samuel, appeal has been filed and the biological parents though not aggrieved by the order of the Child Welfare Committee has entered appearance in the appeal by filing an impleading petition.

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Child Sweety was maintained by Missionaries of Charity till 2008. She was given pre adoption foster care as per Section 42(1) of Juvenile Justice (Care and Protection of Children) Act, read with Rule 36. Ms.Shaila Samuel, appellant has denied the charges of child trafficking, kidnapping and criminal conspiracy as alleged by Ms. Praveen Banu, in the petitions. She has also contended that the petition filed to direct the appellant to add the new Child Welfare Committee members as parties in C.A.No.206 of 2011, is baseless. Child Welfare Committee in its affidavit has stated that the erstwhile Child Welfare Committee passed an order in F.No.4/2010 by which a child was restored from an NGO named Guild of Service to biological parents after appropriate investigation including DNA test wherein the parentage was confirmed, on the basis of the scrutiny

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report filed by the Probation Officer, Coimbatore. According to the Committee, during verification of the above matter, the child was illegally given to some other parent for foster care without the permission of Child Welfare Committee and during the said period Ms.Shaila Samuel, was employed as a Social Worker with the said NGO and as per the records she was dealing with the case. According to the Child Welfare Committee, even during the course of enquiry, it was found from the records of Guild of Service about trafficking and criminal conspiracy in relation to illegal adoption of the above mentioned child victim. It is brought to the knowledge of Child Welfare Committee from the records of Guild of Service that Ms.Shaila Samuel, is a social Worker dealing with these cases and that therefore, the Child Welfare Committee directed the Social Welfare Department, Chennai to constitute an independent committee to conduct a thorough inspection of the said NGO, Guild of Service to ensure that the children were placed in adoption under proper orders and guidelines and further directed the Commissioner of Police to initiate action against the said NGO and the appellant Ms.Shaila Samuel.

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In the enquiry conducted, it was found that the appellant was guilty and removed her from service. Being aggrieved by the removal order of the said NGO, the appellant preferred the appeal against the Child Welfare Committee's order. According to Child Welfare Committee, the appeal filed against the order made in F.No.4/2010 dated 10.05.2011 is a waste of time and has to be dismissed.

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Responding to the above submissions, the appellant-Ms.Shaila Samuel has filed a reply affidavit wherein, it has been contended that as per Section 32 of Juvenile Justice (Care and Protection of Children) Act, for rehabilitation and Social Integration. Child was given in pre adoption foster care, as per Section 42(1) of the Act read with Rule 36 and Chennai District Child Welfare Committee has no jurisdiction over Coimbatore Child Welfare Committee. On the above pleadings, the learned 1st Additional Sessions Judge, Chennai has framed the following points for consideration.

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"1. Whether C.A.206/2011 to set aside the order passed on 10.05.2011 in file No.4/2010 by the Child Welfare Committee is maintainable?

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Whether Crl.M.P.1147/2013 and 1148 of 2013 are liable to be allowed?

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To what relief is the petitioner entitled to?"

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On the above pleadings, submissions and considering the material on record, the learned 1st Additional Sessions Judge, Chennai, answered that C.A.No.206/11 to set aside the order passed on 10.05.2011 in file No.4/2010 by the Child Welfare Committee is not maintainable.

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As regards Crl.M.P.No.1147 of 2013 filed to consider the maintainability of C.A.206/2011 as a preliminary issue and dismissing the appeal with costs, the lower Court allowed the said petition against the appellant. With regard to Crl.M.P.No.1148 of 2013, filed to add the members of the new Child Welfare Committee, the lower Court, dismissed the petition as infructuous, inasmuch as the main appeal C.A.No.206 of 2011, has not been numbered.

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Being aggrieved by the abovesaid order, the present revision petition is filed under Section 397 read with Section 401 of Cr.P.C., read with 53 & 54 of Juvenile Justice (Care and Protection of Children) Act, 2000.

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Mr.T.Mohan, learned counsel for the petitioner submitted that child Sweety born on 15.09.2005 was left behind by her own parents at Sheela Hospital, Coimbatore on 17.09.2005, when the child was just two days old, declaring their wish to leave the child at the Missionaries of Charity, Coimbatore. They also made a declaration on a non-judicial stamp paper dated 17.09.2005 purchased in their own name and signed by both parents stating that the child was kept in the hospital for 26 days and later, on 10.10.2005 was transferred to Missionaries of Charity in Coimbatore as wished by both parents. The birth parents never visited the child at hospital while she was there, nor visited Missionaries of Charity at any point of time. The parents knew very well that the child would be kept at the Missionaries of Charity, an institution started by Mother Theresa, all over the World. The parents never gave any police complaint nor made any efforts to trace her. Child was not a missing child or exploited or abused.

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In support of the above contentions, Mr.T.Mohan, learned counsel for the petitioner referred to the copy of the declaration and the transfer of child, enclosed in the typed set of papers. Learned counsel for the petitioner further submitted that as per sub Rule 4(a) (iv) Rule 33 of the Juvenile Justice (Care and Protection of Children) Rules 2007, a child in need of care and protection means a child whose parents have abandoned (or surrendered) their own child due to their physical, emotional and social factor beyond their control. In this context, child Sweety was in need of care and protection. The child needed special care due to her congenital medical problems. In fact she was christened as Sweety by the sisters of Missionaries of Charity only.

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Inviting the attention of this Court to sub rule 4 of Rule 33 of Juvenile Justice (Care and Protection of Children) Rules, 2007, learned counsel for the petitioner further submitted that waiting period to reclaim the surrendered child is 60 days. Referring to the order of Child Welfare Committee further added that in the case on hand, after five years, the parents have made reclaim.

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Learned counsel for the petitioner further submitted that another child Hippolin (Female) was at Sheela Hospital and left behind the said hospital by her own parents giving their declaration that they do not want the child on account of congenital medical problems. Female child Ruby was admitted by Salem Police Station to Missionaries of Charity, Salem. Coimbatore branch of Missionaries of Charity takes care of mentally retarded children. Children viz., Sweety, Hippolin and another child Babu, not born at Sheela Hospital, but left behind by their parents, were transferred to Salem Branch. No one came forward to claim these children at any point of time.

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Attention of this Court was invited to page No.5 of Typed set of papers, viz., letter dated 02.07.2008 of Mother Superior of Missionaries of Charity Salem, requesting the Honorary Secretary of Cheshire Home, for transfer of these children. Learned counsel further submitted that Cheshire Home is a registered NGO under Societies Registration Act and an Orphanage. Cheshire Home is a sister concern of Guild of Service founded by the same founder.

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Mr.T.Mohan, learned counsel for the petitioner further submitted that all the above five children were at Cheshire Home from July 2008. Being over aged to normal schooling, all were admitted to a school near Cheshire Home. Cheshire Home attended to their medical needs. Vide letter dated 19.03.2009, Cheshire Home approached the Commissioner of Social Welfare, Chennai-5, for suitable transfer to any adoption agency. Commissioner of Social Welfare requested Cheshire Home to do medicals with a panel of Doctors at ICH. After satisfying the medical condition of all five children, vide order dated 07.10.2009 in Ref.No.11476/CW-1/ of 2009, Commissioner of Social Welfare ordered Guild of Service to rehabilitate the above five children in Adoption following Central Adoption Resource Agency [CARA] Guidelines. The abovesaid order was seen and initialed by the Honorary Secretary of Adoption Unit and that the same is enclosed at page Nos. 15 to 17 of the typed set of papers. Thus, the learned counsel for the petitioner submitted that the transfer was done through a licensed, recognized institution.

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Learned counsel for the petitioner further submitted that as per Section 40 of Juvenile Justice (Care and Protection of Children) Act,, 2000 - Chapter IV-Rehabilitation and Social Integration, will begin during the stay at Children home wherein the 1st option is Adoption. He also submitted that for placing the children in preadoption foster care, as per Section 42(1) of Juvenile Justice (Care and Protection of Children) Act, read with Rule 36 of Juvenile Justice (Care and Protection of Children) Rules, 2007, no prior permission is required from the Child Welfare Committee.

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Referring to the procedure followed by Ms.Shaila Samuel, Social Worker of Guild of Service, Mr.T.Mohan, learned counsel for the petitioner submitted that on receipt of permission order dated

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07.10.2009 from Commissioner of Social Welfare, Social Worker, Ms.Shaila Samuel of Guild of Service as authorized, by the Honorary Secretary of Adoption Unit, produced the children, before the Child Welfare Committee within 24 hours. At this juncture, he invited the attention of the Court to Clause 6 of Rule 27 of Juvenile Justice (Care and Protection of Children) Rules 2007, sub clause (c) of clause 1 of Rule 27 of Juvenile Justice (Care and Protection of Children) Rules 2007, and submitted that temporary custody was granted by Child Welfare Committee for all five children vide order dated 04.12.2009 and the Committee also ordered to give paper publication in the area from where the child hails. Accordingly paper publication was done in Dina Malar circulated in Coimbatore area and Salem Area on 01.02.2010.

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Learned counsel further submitted that nobody came forward to prefer any claim. Petition was filed on 05.02.2010 and based on the same, Child Welfare Committee ordered the Probation Officer for an inquiry as per clause 1 of Rule 28 of Juvenile Justice (Care and Protection of Children) Rules 2007. The Probation Officer, Coimbatore submitted his "No Claimant Report" dated 07.04.2010 recommending that child Sweety, be rehabilitated by placing her in adoption, as there were no claimants for her and the report of the Probation Officer is enclosed at Page Nos.70 and 71 of the typed set of papers. Based on the said report, as ordered by Child Welfare Committee, the Social Worker/appellant filed an affidavit on 30.04.2010 and one of the members of Child Welfare Committee Mr.Virgil Mary passed the order on 30.04.2010 and ordered to receive the final order - Clearance Certificate on 07.05.2010. On 07.05.2010, Child Sweety was produced before the Child Welfare Committee to receive the final order, but Child Welfare Committee did not furnish the copy of the order and directed the appellant to appear on 14.05.2010. Setting out the above facts, Mr.T.Mohan, learned counsel for the petitioner submitted that the procedure as set out in the statute have been duly followed.

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As the order passed by Child Welfare Committee, Chennai directing action against Ms.Shaila Samuel, the appellant affects her right, Mr.T.Mohan, learned counsel for the petitioner submitted that she is very much an aggrieved person and thus under Section 52 of Juvenile Justice (Care and Protection of Children) Act of 2000, she has a right to prefer an appeal within 30 days before the Court of Sessions and it is also her contention that she was not heard nor served with the copy of the order dated 10.05.2011 and she only received the copy from Ms.Gemma D'Silva in the proceedings in W.P.No.12344 of 2011 dated 26.05.2011.

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Added further Mr.T.Mohan. learned counsel for the petitioner further submitted that in W.P.No.10735 dated 29.04.2011, this Court ordered to conduct enquiry by the Directorate of Social Welfare and not by Chennai District Child Welfare Committee and gave visitation rights to Gemma D.Silva, Pre-adoption Foster Care parent of Sweety.

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However, child Sweety was given to her parents who hails from a place outside jurisdiction of Chennai District.

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Mr.T.Mohan, learned counsel for the petitioner further submitted that the order of Child Welfare Committee, that Ms.Shaila Samuel has committed the offence of child trafficking, kidnapping and criminal conspiracy, is on presumption and surmises. He also submitted that Child Welfare Committee has no jurisdiction to direct Commissioner of Police, Chennai, to initiate action against Cheshire Home, Chennai under the provisions of the Juvenile Justice (Care and Protection of Children) Act, and the Juvenile Justice (Care and Protection of Children) Rules 2001 and prayed to set aside the order impugned in the revision case.

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Heard the learned counsel for the parties and perused the materials available on record.

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Question to be considered is whether Ms.Shaila Samuel, the revision petitioner is mainly aggrieved over the directions of the Child Welfare Committee. In particular, direction of the Child Welfare Committee to the Commissioner of Police, to initiate action against Cheshire Home, Chennai for child trafficking. The directions of Child Welfare Committee in the impugned order are as follows:

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The said child Sweety should be restored immediately to the biological parents namely Mr.Md.Usman and Ms.Parveen Banu as the parentage has been proved from the report of the Probation Officers, Hospital records and DNA report dated 6.5.2011 from the Government DNA Lab, Forensic Sciences Department, Chennai.

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Child Welfare Committee, directs the Commissioner of Police Greater Chennai to initiate action against the Social Worker of the Guild of Service, Chennai Ms.Shaila Samuel for cheating, fraud, trafficking and criminal conspiracy in relation to illegal adoption.

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Child Welfare Committee recommends the Director of Social Welfare and the Secretary, Social Welfare and Nutritious Meal Programme, Government of Tamil Nadu to cancel the licence accorded to Guild of Service for placing children in adoption with immediate effect.

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Child Welfare Committee, Chennai directs the Commissioner of Police, Chennai to initiate action against Ceshire Home, Chennai for retaining the children without proper orders from the Child Welfare Committee.

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Child Welfare Committee, Chennai directs the Social Welfare Department to constitute an independent committee to conduct a thorough inspection of Guild of Service, Chennai

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and to ensure whether children were admitted and placed in adoption under proper orders during the past 5 years, especially the cases handled by Ms.Shaila Samuel and to send a report to this Committee within 6 weeks from the date of this order.

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Child Welfare committee, Chennai directs the Social Welfare Department to initiate action against Cheshire Home and to transfer the children to any other fit institution. The District Social Welfare Officer, Chennai shall inspect the Ceshire Home, Thiruvanmiyur, Chennai immediately and to look into whether admission of children are taken place under proper orders from the competent authorities.

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The biological parents of the said child Sweety are directed to visit the psychologist/psychiatrist/child guidance as prescribed by the Committee so that the child does not have any distressing emotions and doubt on percentage.

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The biological parents should appear before the Child welfare Committee, Coimbatore together with the child for once in three months for a period of one year so that the Child Welfare committee could satisfy proper care and protection.

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The Probation Officer, Coimbatore is directed to supervise and submit his report once in two months for a period of 2 years.

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The Director of Social Welfare is directed to take necessary action to confirm how Ms.Jemma D'Silva was holding the child Sweety under Pre-adoptive foster care without proper orders of the child Welfare committee and not adhering the norms laid down under Juvenile Justice System.

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The CBCID is directed to take note of the events mentioned above in records and to conduct a thorough investigation for child trafficking by the organizations involved in this case.

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The Director of Medical Education, Director of Medical Service, the Indian Medical Association are directed to issue suitable instructions to the Hospitals to strictly adhere to the procedures laid down under the Juvenile Justice System especially reporting to Police and Child Welfare Committee while dealing / transferring abandoned children.

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Before adverting to the contentions, it is relevant to have a cursory look at the provisions of the statute and the rules framed therein.

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(i) As per Section 2 (f) of the Juvenile Justice (Care and Protection of Children) Act, 2000, “Committee” means a Child Welfare Committee constituted under section 29.

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(ii) Section 29 of the Act , is as follows:

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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.

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

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(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.

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

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

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(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;

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(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.

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(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.

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(iii) The procedure in relation to the Committee has been set out in Section 30, as hereunder

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"Procedure, etc., in relation to Committee.—(1) The Committee shall meet at such times and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed.

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(2) A child in need of care and protection may be produced before an individual member for being placed in safe custody or otherwise when the Committee is not in section.

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(3) In the event of any difference of opinion among the members of the Committee at the time of any interim decision, the opinion of the majority shall prevail but where there is no such majority the opinion of the Chairperson shall prevail.

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(4) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absence of any member of the Committee, and no order made by the Committee shall be invalid by reason only of the absence of any member during any stage of the proceeding.

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(iv) The powers of the Committee, as per Section 31 of the act, is as follows:

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"Powers of Committee.—(1) The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights.

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(2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.

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(v) Section 32 of the Act, is as follows:

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"Production before Committee.—(1) Any child in need of care and protection may be produced before the Committee by one of the following persons—

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(i) any police officer or special juvenile police unit or a designated police officer;

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(ii) any public servant;

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(iii) childline, a registered voluntary organisation or by such other voluntary organisation or an agency as may be recognised by the State Government;

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(iv) any social worker or a public spirited citizen [* * *]; or

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(v) by the child himself:

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Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.

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(2) The State Government may make rules consistent with this Act to provide for the manner of making the report [* * *] to the Committee and the manner of sending and entrusting the child to children’s home pending the inquiry"

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(vi) Section 33 of the Act, is as follows:

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"Inquiry.—(1) On receipt of a report under section 32, the Committee shall hold an inquiry in the prescribed manner and the Committee, on its own or on the report from any person or agency as mentioned in sub-section (1) of section 32, may pass an order to send the child to the children’s home for speedy inquiry by a social worker or child welfare officer.

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(2) The inquiry under this section shall be completed within four months of the receipt of the order or within such shorter period as may be fixed by the Committee:

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Provided that the time for the submission of the inquiry report may be extended by such period as the Committee may, having regard to the circumstances and for the reasons recorded in writing, determine.

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(3) The State Government shall review the pendency of cases of the Committee at every six months, and shall direct the Committee to increase the frequency of its sittings or may cause the constitution of additional Committees.

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(4) After the completion of the inquiry, if, the Committee is of the opinion that the said child has no family or ostensible support or is in continued need of care and protection, it may allow the child to remain in the children’s home or shelter home till suitable rehabilitation is found for him or till he attains the age of eighteen years."

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(vii) Section 38 of the Act is as follows:

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"Transfer.—(1) If during the inquiry it is found that the child hails from the place outside the jurisdiction of the Committee, the Committee shall order the transfer of the child to the competent authority having jurisdiction over the place of residence of the child.

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(2) Such juvenile or the child shall be escorted by the staff of the home in which he is lodged originally.

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(3) The State Government may make rules to provide for the travelling allowance to be paid to the child"

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(viii) Section 39 of the Act, is as follows:

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"Restoration.—(1) Restoration of and protection to a child shall be the prime objective of any children’s home or the shelter home.

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(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 deprived of this 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.

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(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.

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Explanation.—For the purposes of this section “restoration of and protection of a child” means restoration to—

(a) parents;

(b) adopted parents;

(d) guardian;

(e) fit person;

(f) fit institution"

(ix) Section 41 (5) of the Act, is as follows:

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"Adoption.—(5) No child shall be offered for adoption—

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(a) until two members of the Committee declare the child legally free for placement in the case of abandoned children,

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(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and

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(x) It is also relevant to consider the Rules and provisions of Tamil Nadu Juvenile Justice (Care and Protection of Children) Rules, 2001.

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"20. Proceedings of the Committee:

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(s) The Child Welfare Committee shall direct a Medical Officer or any Medical institution to under take medical examination in respect of girl child and furnish report for follow-up.

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(t) If the Child Welfare Committee sees that a girl child is abused as per the report of Medical Officer or as per the report of Probation Officer / Social Worker, the Child Welfare Committee shall summon the concerned person (s) to the present on the dates specified for enquiry.

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(u) The Child Welfare Committee can also direct the police to produce the person (s) who abuses the child. The

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person who presents himself or produced before the Committee shall be examined and their statements can be recorded under Sec.164 of Criminal Procedure Code, 1973. While doing so, the person can be informed that giving statement under Sec.164 of Criminal Procedure Code, 1973 will be used against the individual as an evidence of witness. If the individual refuses to give statement, such information shall also be recorded.

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(v) The Child Welfare Committee shall direct the police to investigate and file a status report in respect of physical or sexual abuse cases within a specified period of time.

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(w) If the Child Welfare Committee either on enquiry or on a status report of the police or on the report of the Probation Officer or on the report of the Medical Officer arrives at a conclusion or finds any prima facie evidences that confirm the abuse of child, the Child Welfare Committee shall direct the police to file an FIR and investigate the cases as per Law. On receipt of investigation report from the police the Child Welfare Committee shall refer the issue to the Juvenile Justice Board for further proceedings.

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(xi) Central Government has framed Juvenile Justice (Care and Protection of Children) Rules, 2007. Some of the statutory rules required to be considered are as follows:

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"25. Functions and powers of the Committee:

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(r) co-ordinate with the Police, Labour Department and other agencies involved in the care and protection of children with the support of District Child Protection Unit or State Child Protection Unit or State Government.

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Production of a Child before the Committee:

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(9) The Committee shall facilitate the filing of a police complaint and First Information Report in cases of missing children as well as matters of violence, exploitation and abuse of children and arrange for required legal aid through the Legal Officer in the District Child Protection Unit or District or State Legal Aid Services Authority or voluntary organisations.

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Abuse and exploitation of the juvenile or child:

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(iii) the Board or Committee shall direct the local police station or Special Juvenile Police Unit to register a case, take due cognizance of such occurrences and conduct necessary investigations;

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Reading of the statutory provisions, makes it clear that Child Welfare Committee has been vested with the powers to file an FIR and investigate the cases as per law, as per Rule 20 of Tamilnadu Juvenile Justice (Care and Protection of Children) Act, Rules, 2001. These Rules deal only with cases where there is sexual abuse and not applicable to the facts on hand. Similarly, provision is also there in Rule 60(iii) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that too in cases of abuse, and exploitation of the juvenile or child.

¶138

It is pointed out by the learned counsel for the petitioner that Section 29(5) of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that 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.

¶139

However, those powers is only to carry on certain functions as set out in the Act and Rules framed thereunder and only in case of incidents relating to abuse of juvenile. A direction could be issued for registration of FIR in case of missing children. Therefore, the impugned order of the Child Welfare Committee directing the police officials to initiate criminal action and further directions to the Social Welfare authorities, is not supported by any provision of Law.

¶140

It is also to be noted that the revision petitioner has not be provided with a reasonable opportunity. Violation of principles of natural justice is also per se apparent. In A.K.Kraipak v. Union of India, reported in AIR 1970 SC 150, the Hon'ble Supreme Court observed that the rules of natural justice operate only in areas not covered by any law validly made. These principles thus supplement the law of the land. In the case of Smt.Maneka Gandhi v. Union of India and another, reported in AIR 1978 SC 597, it has been observed that even where there is no specific provision for showing cause, yet in a proposed action which affects the rights of an individual, it is the duty of the authority to give reasonable opportunity to be heard. This duty is said to be implied by nature of function to be performed by the authority having power to take punitive or damaging action. In fact, in Lapointe v. L'Association, reported in (1906) AC 535 (39), it has been observed, "The rule (Audl alteram partem) is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals."

¶141

https://hcservices.ecourts.gov.in/hcservices/

¶142

Section 53 of the Juvenile Justice (Care and Protection of Children) Act 2000 states as follows:

¶143

"The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit:

¶144

Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."

¶145

Sections 397 and 401 of the Code of Criminal Procedure, is as follows:

¶146

"397. Calling for records to exercise powers of revision.

¶147

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself' or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of' any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

¶148

Explanation. All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.

¶149

(2) The powers of revision conferred by sub-section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

¶150

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the of the of them."

¶151

https://hcservices.ecourts.gov.in/hcservices/

¶152

High Court's powers of revision.

¶153

(1) In the case of any proceeding the record of which has been called for by it self or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

¶154

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

¶155

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

¶156

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way if revision shall be entertained at the instance of the party who could have appealed.

¶157

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

¶158

In support of the contentions stated supra, Mr.T.Mohan, learned counsel for the petitioner drew the attention of this Court to the statutory provisions and took this Court through the typed set of papers.

¶159

(i) Declaration dated 17.09.2005, given by birth parents of Child Sweety to Missionaries of Charity (MCH)

¶160

md;g[s;s mk;kh.

¶161

ehd; bkhfk;kJ c!;khdhfpa ehd; vdf;Fg; gpwe;j bgz; FHe;ijapd; ,uz;L rpWePuf';fSk; gGjile;Js;sjhy; ,f;FHe;ijia bjurh FHe;ijfs; fhg;gfj;jpy; guhkhpg;gjw;F ehDk; vdJ kidtpahd gh;tPd; ghDt[k; KGikahf rk;kjpf;fpnwhk;/

¶162

,g;gof;F fztd; : Xg;gk; kidtp : Xg;gk; 15/09/2005

¶163

https://hcservices.ecourts.gov.in/hcservices/

¶164

(ii) Letter dated 10.10.2005, with regard to handing over the baby (F) to MCH as decided by the birth parents of Child Sweety

¶165

SHEELA CLINIC To Mother Superior, Missionaries of Charity, Salem.

¶166

Respected Sister,

¶167

This is to certify that the Baby of Parveen of weight 2.25Kg was born & left behind in the hospital. There has been no claim for the past 26 days hence the baby handed over to the orphanage.

¶168

Thanking you,
Yours faithfully,
Sd/-
Dr.Mrs.GHRISTY GANAPATHI, M.D., DGO.,
Regd.No.13567,
SHEELA CLINIC,
46, East Power House Road,
Coimbatore-641 012.
(iii) Letter of Mother Superior of MCH to Cheshire Home, Chennai
dated 02.07.2008, for treatment a there were no claim for five
children.
02.07.2008
From
Mother Superior,
Missionaries of Charity,
Alagapuram,
Convent Road,
Salem.
To
Hon.Secretary,
Attn., Mrs.Maureen Murari,
Cheshire Homes of India,
3 rd Seaward Road,
Valmiki Nagar,
Thiruvanmiyur,
Chennai.
Dear Maureen,

¶169

We have the custody of following 5 children needing special medical attention. Since we do not much facility to take care of their medical problems, as requested earlier, we transfer them to

¶170

https://hcservices.ecourts.gov.in/hcservices/

¶171

your place. Children details are enclosed herewith. No one has approached us till date in claim of them. Thanking you,

¶172

Yours Sincerely, Sd/Sr.Christiana, Mother Superior, Missionaries of Charity, Convent Road, Alagapuram, Salem-636 016.

¶173

DETAILS OF CHILDREN

¶174

Baby Sheela, Female, DOB.12.11.2005 was admitted to Sheela Hospital, Coimbatore, by her mother Kamala on 16.02.2006. As the child was sick, Birth mother Kamala gave her self declaration that she does not want the child back on stamp paper dated 17.02.2006 from the hospital she was transferred to missionaries of Charity by Dr.Christi Ganapathy of Sheela Hospital on 17.02.2006.

¶175

Hippolin, Female, DOB 13.08.2005 born with Congenital Anamoly (no eye brows and no hair on the head was left behind in Sheela Hospital by her parents on 17.08.2005 who has given her self declaration on stamp paper. Later on Dr.Christi Ganapathy transferred the child to missionaries of Charity on 31.08.2005. We named her as Hippolin.

¶176

Babu, Male, Dob 03.01.2005, Birth weight 1 Kg and as 6 fingers on right leg and seven on the left leg. He was left behind in Sheela Hospital on 03.01.2005. Mother Kuppammal absconded leaving behind the child in the hospital. Dr.Christi Ganapathy transferred the child to the Missionaries of Charity on 28.05.2005. Babu has delayed and un-cleared speech. His head size is not in proportion to his body.

¶177

Sweety, Female, DOB 15.09.2005 was left behind in Sheela Hospital by her parents on 17.09.2005. Child was sick and needed special medical attention. Both the parents have given the self declaration on stamp paper. Later Dr. Christi Ganapathy transferred the child to the Missionaries of Charity on 10.10.2005.

¶178

https://hcservices.ecourts.gov.in/hcservices/

¶179

Ruby, Female, app.Age 2 years was left behind in Salem Police Station on 25.06.2007. Later on the child was handed over to Missionaries of Charity on 26.06.2007 Salem by the Police. Police report is enclosed.

¶180

Sd/Sr.Christiana, Missionaries of Charity, Convent Road, Alagapuram, Salem-636 016.

¶181

(iv) Reply (dated 13.07.2008) by Honorary Secretary of Cheshire, Chennai to Mother Superior, Salem of MCH.

¶182

Cheshire Homes India Chennai Unit 23A, 3^rd Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai-600 041. Phone:24417437, 24405385 Email:[email protected] www.chennaicheshirehome.org Leonard Cheshire Disability 13^th July, 2008 The Mother Superior, Alagapuram Convent, Salem, Tamil Nadu. Dear Mother Superior, In response to your letter dated 2^nd July, 2008, requesting medical support and transfer of five children to Cheshire Home, we are willing to take care of these give children, as per your request. Yours truly, Sd/Maureen Hudson-Murari Honorary Secretary (v) Letter (dated 23.01.2009) to Karna Prayag, Director, Mrs. Uma Narayanan Cheshire Homes India Chennai Unit 23A, 3^rd Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai-600 041. Phone:24417437, 24405385 Email:[email protected] www.chennaicheshirehome.org Leonard Cheshire Disability 23^rd January, 2009.

¶183

https://hcservices.ecourts.gov.in/hcservices/

¶184

Mrs.Uma Narayanan KARNA PRAYAG, Teynampet.

¶185

Dear Uma,

¶186

Further to my telephone conversation, I'm enclosing profiles of the 5 children currently in our care at Cheshire Home.

¶187

As you can see, these children were sent to us by Missionaries of Charity, Salem, to undertake medical attention and follow-up vaccinations. We have not finished the full profile of vaccinations including Hep-B and these children are free of both Hep-B and HIV. However, a few of them do have congenital problems.

¶188

They are beautiful, intelligent children and we have a teacher coming in daily to give them lessons and they are responding very well.

¶189

We would like to put them for adoption, if possible, but first have to get permission of the Government and also for the transfer – for adoption purposes – to Karna Prayag.

¶190

This letter is to request your support in accepting them under Karna Prayag and helping to place these children. We would like to keep the children in Cheshire Home for the duration but they can be brought to Karna Prayag for the necessary interventions for VCA etc.,

¶191

Looking forward to your positive response.

¶192

Sincerely, Sd/Maureen Hudson-Murari Honorary Secretary

¶193

(vi) Reply (dated 24.01.2009) by Karna Prayag, refusing to accept the children referral.

¶194

Karna Prayag Trust Welfare Centre for Women and Children, No.10, Raja Krishna Road, Teynampet, Chennai - 600 018 Phone: 24355182 Email: [email protected] Website: www.karnaprayag.org

¶195

24.01.09

¶196

To Mrs.Maureen, Honorary Secretary, Cheshire Homes India, Chennai.

¶197

https://hcservices.ecourts.gov.in/hcservices/

¶198

Dear Mrs.Maureen

¶199

In continuation with the telephonic conversation by Mrs.Purna Shankar with you, we are returning back the profiles of the five children.

¶200

Thank you, Regards, Sd/Sheela Jayanthi Director, For Karna Prayag Trust.

¶201

(vii) Letter (dated 19.03.2009) to Commissioner of Social Welfare for suitable referral to any adoption agency by the Secretary of Cheshire Home.

¶202

Cheshire Homes India
Chennai Unit
23A, 3 rd Seaward Road, Valmiki Nagar,
Thiruvanmiyur, Chennai-600 041.
Phone:24417437, 24405385
Email:[email protected]
www.chennaicheshirehome.org
Leonard Cheshire Disability
19 th March, 2009.
Commissioner,
Directorate of Social Welfare,
Chepauk,
Chennai-600 025.
Dear Sir,
Cheshire Homes Chennai has been a residential home for the
abandoned and destitute working in the field of disability since 1958.

¶203

We have also been a resource centre for the needy children of Nirmala Shishu Bhavan – we held to maintain the mentally retarded children and take care of their medical needs and in may cases the correctional surgery and rehabilitation of children with their families. There are 5 children, whose reports are enclosed for your information, who were transferred from Nirmala Shishu Bhavan, Salem Branch for medical attention. On doing the medical Check-ups, the doctor opined that they are placeable category in adoption being orphan minors. Cheshire Home doesn't have recognition to do adoption hence this request for transfer of these children to a suitable adoption agency.

¶204

https://hcservices.ecourts.gov.in/hcservices/

¶205

With thanks and appreciation for your co-operation. We trust that you will be able to oblige the necessary transfer of the children currently in our care.

¶206

Yours truly, Sd/Maureen Hudson-Murari Honorary Secretary (viii) Reply (dated 13.04.2009) by Commissioner to do Medical Examination by panel of Doctors at ICH, Chennai - 8. From To

¶207

Sir/Madam,

¶208

Sub: Social Welfare -Child Welfare – Adoption – Request for transfer of 5 Adoptable Children from Cheshire Homes India, Chennai to some other adoption agency – regarding.

¶209

Ref: Letter dated 19.03.2009 of Cheshire Homes India, Chennai. -----

¶210

With reference to your letter regarding transfer of the following 5 Adoptable Children from Cheshire Homes to a suitable adoption agency, your are requested to obtain and furnish a Certificate from Doctor's Panel of ICH which has been formed for this purpose.

¶211

Sl.N o. (1)	Name, Age & Sex of Child (2) Date of Admission (3) Source of Admission (4)	Pre Health (	sent Status 5)
1	Sheela (F) (D.O.B.--12.11.2005) 02.07.2008 Surrendered by Mother MOC, Salem 17.02.2006	to on Normal
2	Hippolin (F) (D.O.B.--13.08.2005) 02.07.2008 Surrendered by Parents MOC, Salem 31.08.2006	to on Normal hair brows)	(No & eye

¶212

https://hcservices.ecourts.gov.in/hcservices/

¶213

Sl.N Name, Age & Sex of Date of Source of Present
o. (1) Child (2) Admission (3) Admission (4) Health Status (5)
3 Babu (MO (D.O.B.--03.01.2005) 02.07.2008 Surrendered by Mother to MOC, Salem on Normal (Big head 6 toes & 7 toes)
4 Sweety (F) (D.O.B.--15.09.2005) 02.07.2008 Surrendered by Parents to MOC, Salem on 10.10.2005 Normal
5 Ruby (F) (2 years) 02.07.2008 Abandoned Child admitted to MOC by police on 26.06.2007 Normal On perusal of records, it is understood that these children were transferred to your Home from Missionaries of Charity, Salem for
Medical treatment and now since their health condition has improved and they have become normal, you have requested them to be placed in adoption.
It is however felt that they have to undergo complete Medical Test by Doctor's panel or ICH to ensure the health condition as a normal routine procedure and to decide whether these children are to be transferred to in-Country (or) inter-Country adoption agency. Sd/- For Commissioner of Social Welfare Copy to: 1.The Mother Superior, ---> A copy of G.O.Ms.No.263, dated Social
Missionaries of Charity, Welfare & N.M.P. Department, dated
Alagapuram, 5/10/1995 giving details of Convent Road, procedures to be followed while an Salem. abandoned child is enclosed herewith. You are hereby advised to follow the instructions strictly in future. 2.The Dean, ---> Kindly offer necessary assistance to
Institute of Child Health completely undergo Medical Tests
Egmore, suggested by Doctors Panel and issue Chennai-8. A Health Report for these 5 children at the earliest to enable early adoption

¶214

https://hcservices.ecourts.gov.in/hcservices/

¶215

3.The Secretary, ---> Adoption Co-ordinating Agency, No.5, III Main Road (West), Shenoy Nagar, Chennai-600 030.

¶216

(xi) Reply (dated 17.06.2009) by Honorary Secretary of Cheshire Home enclosing the Medical report on each child by panel of Doctors.

¶217

Cheshire Homes India

¶218

Chennai Unit 23A, 3^rd Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai-600 041. Phone:24417437, 24405385 Email:[email protected] www.chennaicheshirehome.org Leonard Cheshire Disability 17.06.2009 To Dr.Manivasan, IAS, Commissioner of Social Welfare, Chepauk, Chennai.

¶219

ROC No.11476/CW-1/2009 dated 13.4.2009

¶220

Dear Sir,

¶221

Sub: Social Welfare / Child Welfare / Adoption - Request for transfer of 5 adoption children from Cheshire Home India Chennai branch to some other adoption agency.

¶222

Reference: letter dated 13.04.2009 Cheshire Home India.

¶223

With reference to your letter dated 16.04.09 herewith enclosing the medical report on each child as requested. Kindly do the needful at a early date.

¶224

Thanking you,

¶225

Sincerely yours, Sd/Heera Rajarathnam Honorary Secretary

¶226

(x) Reply letter (dated 30.09.2009) of Guild of Service to receive the children as instructed by Commissioner of Social Welfare.

¶227

https://hcservices.ecourts.gov.in/hcservices/

¶228

GUILD OF SERVICE (CENTRAL) SEVA SAMAJAM ADOPTION UNIT

¶229

Chairman Hon.Secretary & Treasurer Justice Mr.S.Natarajan Prof.K.M.George Former Supreme Court Judge

¶230

30th September 2009

¶231

Mrs.M.P.Nirmala, IAS, Commissioner of Social Welfare, Chepauk,

¶232

Chennai - 600 005.

¶233

Dear Madam,

¶234

Sub: Transfer of 5 children to Guild of Service, Chennai from Cheshire Homes India - reg.

¶235

Ref: Your Office letter vide Roc.No.11476/CW/1/2009 dated

¶236

13.04.2009

¶237

addressed to The Secretary, Cheshire Homes India.

¶238

With reference to your letter cited above addressed to the Secretary, Cheshire Homes India, it is requested that the below mentioned children may kindly be transferred to Guild of Service - Adoption Unit as we have interested suitable adoptive parents residing at Chennai for these children:-

¶239

Sheela, Female, D.O.B. 12.11.2005 2. Hippolin, Female, D.O.B. 13.08.2005

¶240

Babu, Male, D.O.B. 03.01.2005

¶241

Sweety, Female, D.O.B. 15.09.2005

¶242

Ruby, Female, aged approximately 2 years.

¶243

We have both valid in-country and inter-country license to process the cases legally. Kindly do the needful.

¶244

Thanking you, Yours sincerely, Sd/-

¶245

Mrs.Shaila Samuel, Social Worker.

¶246

(xi) Transfer order (dated 07.10.2009) by Commissioner of Social Welfare and signed by Honorary Secretary Adoption Unit accepting the referral on 27.11.2009.

¶247

https://hcservices.ecourts.gov.in/hcservices/

¶248

From

¶249

¶250

Tmt.M.P.Nirmala, I.A.S., Cheshire Homes India, Commissioner of Social Welfare, Chennai, Chepauk, 23-A, 3^rd Seaward Road, Chennai-5. Valmiki Nagar, Thiruvanmiyur, Chennai-600 041.

¶251

Roc.No.11476/CW – 1/2009, Dated 07.10.2009

¶252

Sir,

¶253

Sub: S.W -C.W - Adoption Cell - Request for transfer of 5 Adoptable Children from Cheshire Homes India, Chennai to some other adoption agency – regarding.

¶254

Ref: 1. Letter dated 19.03.2009 of Cheshire Homes India, Chennai. 2. Guild of Service Letter dated 30.09.2009 -----

¶255

In continuance of the reference cited above, permission is hereby given to transfer the kids namely Sheela, Hippolin, Babu, Sweety and Ruby to Guild of Service, Egmore for rehabilitating them under adoption programme, by following CARA Guidelines.

¶256

The receipt of the letter may be kindly acknowledge.

¶257

Sd/- M.P.Nirmala, Commissioner of Social Welfare. //by order//

¶258

Copy to: 1. District Social Welfare Officer, Chennai. 2. Guild of Service, Egmore.

¶259

Sd/For Commissioner of Social Welfare

¶260

(xii) Children were produced before CWC, Chennai along with documents given by State Government.

¶261

27.11.2009

¶262

To The Hon. Secretary, F.C.U. Ms-8 Dear Sir,

¶263

Enclosed herewith the transfer letter for the 5 children mentioned in the letter from State government. These children are already attending formal school at nearby school / Cheshire Home. It is in the middle of the academic year also. More over they are on

¶264

https://hcservices.ecourts.gov.in/hcservices/

¶265

physio / speech therapy also. So as has been in the previous years, let the children continue at Cheshire Home. Meanwhile since the documents are incomplete, I shall produce them before CWC and final placements for them.

¶266

Thanking you,

¶267

Sincerely Yours, Sd/Shaila Samuel

¶268

(xiii) Temporary Custody granted by CWC, Chennai.

¶269

CHILD WELFARE COMMITTEE, CHENNAI

¶270

Chairperson : Dr.P.Manorama, MD., DCH, DM. Members : Tmt. Virgil Mary Sami .D, Thiru.M.N.Regis Thiru.A.Anbarasu Thiru.S.Ramalingam T.C.No.26/09 Date: 4.12.09 In the matter of child SWEETY

¶271

One child by name SWEETY aged 4 years was produced before this Committee by Mrs.Shaila Samuel, Social Worker, Guild of Service, Egmore, Chennai - 8.

¶272

A petition for temporary custody of the said child was filed by Mrs.Shaila Samuel, Social Worker, Guild of Service, Egmore, Chennai - 8 before this Committee.

¶273

The sworn statement of the petitioner was recorded today by the Committee. The Committee is of view that the petitioner is the fittest person to entrust temporary custody of the said child and orders that to the grant temporary custody of the said child from 27.11.09 to the petitioner on conditions until further orders of this Committee or any competent Court.

¶274

Not to entrust the child to anybody.

¶275

To report the physical conditions of the child to this Committee every month

¶276

To give publication in a new daily in the Coimbatore edition. 4. To produce the child before the Committee police station after one month from the date of complaint.

¶277

Sd/CHAIRMAN / MEMBER CHILD WELFARE COMMITTE, 500, Purasawalkam High Road, Chennai - 10

¶278

(xiv) Paper publication dated 01.02.2010, done in Dina Malar circulated in Coimbatore area.

¶279

https://hcservices.ecourts.gov.in/hcservices/

¶280

mwptpg;g[

¶281

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¶282

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¶283

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¶284

https://hcservices.ecourts.gov.in/hcservices/

¶285

,g;gof;F FHe;ijfs; eyf;FGkk; brayu;. fpy;L M`g; ru;tP!; 300. g[uirthf;fk; beL";rhiy brd;id ? 600 008 bfy;yP!;. brd;id ? 600 010

¶286

(xv) Petition filed before CWC Chennai, for Destitute Certificate for child Sweety.

¶287

BEFORE THE CHILD WELFARE COMMITTEE, CHENNAI

¶288

Adoption Unit of the Guild of Service, In the matter of minor female 18, Casa Major Road, Egmore SWEETY born on 15.09.2005 Chennai - 600 009

¶289

Mrs.Shaila Samuel

¶290

.... Petitioner

¶291

Petitioner states that I am the Social Worker authorized by the Guild of Service in matters relating to abandoned and neglected juveniles before the Child Welfare Committee, Chennai (copy of authorisation letter is enclosed).

¶292

Petitioner states that the Guild of Service (Central) Seva Samajam is registered under the Societies Registration Act XX1 of 1860 with S.No.4 of 194 and also state that a certificate of Recognition is granted to Guild of Service, Egmore, Chennai - 8 under the Orphanages and other Charitable Homes (Supervision and Control) Act vide Certificate No.28/2003 dated 27.05.2003 by Directorate of Social Welfare, Chepauk, Chennai - 600 005, Government of Tamilnadu.

¶293

Petitioner states that the Government of Tamilnadu has issued a GO Letter No.31284/M1/81, dated 17.5.82 to Guild of Service, Chennai, to receive and take care of abandoned and destitute babies (copy enclosed).

¶294

Petitioner states that the Social Welfare and Nutritious Meal Programme Department, Secretariat, Chennai - 600 009 has given a certificate of Recognition to Guild of Service to do in-country adoption dated 26.07.2007 valid for three years from the date of issue vide certificate no.11/2007 (xerox copy enclosed).

¶295

Petitioner also states that the Guild of Service has been accorded Revised Certificate of Recognition for processing applications for inter-country adoption and handling related matters for 2 years and 4 months from 15.09.2009 to 18.01.2012 by Central Adoption Resource Authority (CARA), Government of India, Ministry of Women and Child Development vide Certificate No.RIPA-18/2009 dated 18.09.2009 (Xerox copy enclosed).

¶296

Petitioner states that minor Sweety, Female, born on 15.09.2005 was left behind in Sheela Hospital, Coimbtaore as the child was sick and needed special medical attention; by her parents on 17.09.2005 who have given their self declaration on a stamp paper. The said child was transferred to Missionaries of Charity by Dr.Christi Ganapathi of Sheela Hospital on 10.10.2005. Later on child Sweety

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¶298

was transferred to Missionaries of Charity, Salem as Coimbatore Branch does not have facility to look after the children. Missionaries of Charity, Salem requested vide their letter dated 02.07.2008 to the Hon. Secretary of Cheshire Homes of India, Chennai to attain to the medical needs of this child as they have no facility to take care of such a child and later if possible to find a permanent shelter by the way of placing her in adoption. Cheshire Home did all the medical investigations and found that she is eligible for adoption. Cheshire Home requested through Directorate of Social Welfare, Chepauk, Chennai to transfer this child to an adoption agency vide their letter dated 19.03.2009 as Cheshire Home does not have license to place children in adoption. The Directorate of Social Welfare, Chennai has given permission to Cheshire Home vide their letter Roc.No.11476/CW-1/2009 dated 07.10.2009 to transfer this child Sweety to the Guild of Service Adoption Unit, Chennai - 8. The child was transfered to Guild of Service on 27.11.2009. The Guild of Service was granted temporary custody for child Sweety by the Child Welfare Committee, Chennai - 600 010 on 04.12.2009 by way of T.C.No.26 of 2009. Paper publication was done in Dinamalar - Coimbatore edition on 1.2.2010. Child is in our custody since then. So far no one has come forward to claim her.

¶299

Hence it is prayed that the child Sweety (F) may be granted destitute certificate to find a permanent placement.

¶300

Dated at Chennai this 5th day of February 2010.

¶301

Sd/(Mrs.Shaila Samuel) Social Worker

¶302

(xvi) Draft of final order submitted to CWC to receive the final order on 07.05.2010

¶303

C.W.C.No. /2010

¶304

Mrs.Shaila Samuel, Social Worker, Guild of Service (Central) - Adoption Unit, 18, Casa Major Road, Egmore, Chennai - 600 008. ... Petitioner

¶305

(In the matter of abandoned child SWEETY - Female, born on 15.09.2005) ORDER:

¶306

This is a petition filed for declaring the above-mentioned child, viz now aged 4 years and 7 months named SWEETY, a destitute child. The petition was filed on 5th February 2010 by the above named petitioner.

¶307

An affidavit from the petitioner was filed on 30th April 2010 in support of her claim. In the affidavit she affirmed that she has

¶308

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¶309

been authorized to file this petition. (Authorized letter dated 18.02.2005 is filed as Ex.P-1)

¶310

The Founding Home under Guild of Service (Central), Chennai - 8, was recognized by the then Juvenile Welfare Board, Chennai as a Fit institution for the purpose of receiving juvenile particularly the infants for temporary custody (Xerox copy of the certificate filed as Ex.P-2).

¶311

The Deputy Director of Social Welfare (Women's Welfare in-charge), Chennai - 600 035, permitted the institution Foster Care Unit at 32, Casa Major Road, Egmore, Chennai - 600 008, managed by the Guild of Service (Central), to take care of the children under 3 years of age orphaned and destitute abandoned in Government Hospitals vide his proceedings No.Roc.31284/M1/81 dated 17.5.82 (Xerox copy of the proceedings filed as Ex.P-3).

¶312

The Deputy Director of Medical Services and Family Welfare (Admn.), Chennai - 600 006, vide his letter no.34956/M1/85 dated 12.4.1985, requested the District Medical Officers and other Heads of Medical Institutions to hand over orphaned and destitute children of the Government Hospitals to the Foster Care Unit C/o. The Madras School of Social Work, 32, Casa Major Road, Egmore, Chennai - 600 008 (Xerox copy of the letter filed as Ex.P-4).

¶313

The Social Welfare and Nutritious Meal Department, Secretariat, Chennai - 600 009, has given a Certificate of Recognition to Guild of Service to do in-country adoption dated 26.07.2007 for a period of 3 years from 22.04.2007 vide certificate no.11/2007 (Xerox copy of the certificate is filed as Ex.P-5).

¶314

The Central Adoption Resource Authority, Government of India, Ministry of Women and Child Development recognized Guild of Service on 18th September 2009 vide certificate RIPA-18/2009 dated 18.09.2009 for processing applications for inter-country adoption and handling related matters for a period of 2 years and 4 months from 15.09.2009 to 18.01.2012 (Xerox copy of the Revised Certificate of Recognition is filed as Ex.P-6).

¶315

Adoption Unit of Guild of Service has applied for a destitute certificate for child Sweety, Female, born on 15.09.2005 was left behind in Sheela Hospital, Coimbatore as the child was sick and needed special medical attention; by her parents on 17.09.2005 who have given their self declaration on a stamp paper. The said child was transferred to Missionaries of Charity by Dr.Christi Ganapathi of Sheela Hospital on 10.10.2005. Later on child Sweety was transferred to Missionaries of Charity, Salem as Coimbatore Branch does not have facility to look after the children. Missionaries of Charity, Salem requested vide their letter dated 02.07.2008 to the Hon.Secretary of Cheshire Homes of India, Chennai to attain to the medical needs of this child as they have no facility to take care of such a child and

¶316

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¶317

later if possible to find a permanent shelter by the way of placing her in adoption. Cheshire Home did all the medical investigations and found that she is eligible for adoption. Hence Cheshire Home requested through Directorate of Social Welfare, Chepauk, Chennai to transfer this child to an adoption agency vide their letter dated 19.03.2009 as Cheshire Home does not have license to place children in adoption.

¶318

The Directorate of Social Welfare, Chennai has given permission to Cheshire Home vide their letter Roc.No.11476/CW-1/2009 dated 07.10.2009 to transfer this child Sweety to the Guild of Service Adoption Unit, Chennai - 8. The child was transferred to Guild of Service on 27.11.2009.

¶319

The Guild of Service was granted temporary custody for child Sweety by the Child Welfare Committee, Chennai - 600 010 on 04.12.2009 by way of T.C.No.26 of 2009. Paper publication was done in Dinamalar - Coimbatore edition on 1.2.2010. Child is in our custody since then. So far no one has come forward to claim her.

¶320

The Probation Officer, ______________ after making detailed enquiry has stated that the biological parents of female child SWEETY could not be traced out and recommended to declare the said child as an abandoned child.

¶321

Considering the contents of the petition, affidavit filed by the petitioner, the supporting documents filed thereon and the Probation Officer's report that the Committee is of view that we have no other go except to declare the petition juvenile as a destitute child.

¶322

Accordingly, the Committee certifies that the child by name SWEETY (Female) born on 15.09.2005, who is now under the care and custody of the Guild of Service (Central) - Adoption Unit, the petitioner institution as an Abandoned child - Free for Adoption.

¶323

The petitioner is directed to report this Committee about the physical conditions of the child on the ______ week of every English Calendar month commencing from ______ 2010

¶324

The Petitioner is further directed to report the Committee within one month from the date of adoption orders passed by competent court, if any.

¶325

Violation or deviation of the above condition no.1 will be cancelled this certificate and no.2 will be dealt as disobedience of this orders.

¶326

IDENTIFICATION MARKS

¶327

Dated at this _______ day of ______ 2010."

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¶329

A perusal of the order of the Child Welfare Committee shows that the revision petitioner has not been provided with any opportunity, whereas observations have been made against her. Directions have been issued to several authorities. Child Welfare Committee has directed Commissioner of Greater Chennai to initiate action against the petitioner for cheating in relation to illegal adoption. Under the statutory provisions and on the facts and circumstances of the case, Child Welfare Committee has no powers to direct the Commissioner of Police to initiate Criminal Action.

¶330

Learned 1st Additional Sessions Judge, Chennai has failed to consider that the order of Child Welfare Committee is beyond the powers conferred on the Committee and that the petitioner is certainly an aggrieved person, as per Section 52 of the Act and she can file an appeal against the orders of Child Welfare Committee.

¶331

As per Sub section 9 of Rule 27 of the Juvenile Justice (Care and Protection of Children) Rules 2007, Child Welfare Committee can facilitate the filing of a police complaint and First Information Report in cases of missing children as well as matters of violence, exploitation and abuse of children and arrange for required legal aid, through the Legal Officer in the District Child Protection Unit or District or State Legal Aid Services Authority or voluntary organisations and the committee has no powers to direct registration of criminal cases on the facts and circumstances of the present case. It is also to be seen that the parents have never visited the child in the hospital nor in the Missionaries of Charity and made an application for restoration after five years. There is no complaint of either exploitation or abuse of the child.

¶332

Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000, is as follows:

¶333

Appeals.—(1) Subject to the provisions of this section, any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Session:

¶334

Provided that the Court of Session 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.

¶335

(2) No appeal shall lie from—

¶336

(a) any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or

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¶338

(b) any order made by a Committee in respect of a finding that a person is not a neglected juvenile.

¶339

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

¶340

When the observation and directions of the Child Welfare Committee are not in conformity with the statutory provisions of the Juvenile Justice (Care and Protection of Children) Act and the Rules framed therein and moreso when they are made without providing a reasonable opportunity of being heard, the same deserves to be interfered with. Therefore, the Appeal preferred by the revision petitioner in C.A.No.206 of 2011 is maintainable and the order passed by the learned 1st Additional Sessions Judge, Chennai in Crl.M.P.No.1147 of 2013 is set aside. The Criminal Revision Case is allowed. No Costs.

¶341

Sd/Asst.Registrar (CS VII) /true copy/ Sub Asst. Registrar To The 1st Additional Sessions Judge, Chennai.

¶342

+2 cc's to Mr.Yogeswaran,advocate,sr.40461. +1 cc to Mrs.P.Uma, advocate,sr.40466. ev(co) krd 4/8 Pre-delivery judgment in Crl.R.C.No.1195 of 2014

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Shaila Samuel v. Parveen Babu

Case brief

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Shaila Samuel v. Parveen Babu

Case brief

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