‘When a child is found in need of care and protection, before putting the child in Children's Home, there should be application of mind by the Committee; Committee shall take into account the investigation report by the Child Welfare Officer as well as child's wishes. ‘
Ordering a girl to be released from Mahila Mandiram, the Kerala High Court has held that a victim/juvenile cannot be stationed in a Children's Home or in any other such shelter on the ground that there is the possibility of access of the accused to the victim.
The girl, a victim of a POCSO crime, was produced before the Juvenile Justice Committee pursuant to the order of the Judicial Magistrate. She was admitted in a Mahila Mandiram. Petitions filed by father and grandmother of the victim girl for the release and custody of the child were rejected as the committee found that they were incapable of looking after the child as well as there is the possibility of meeting the child by the accused in the POCSO case. The father and grandmother then approached the high court by filing a revision petition.
A bench of Justice V Chitambaresh and Justice KP Jyothindranath interacted with the girl who expressed her desire to go with her grandmother or with the father as the court orders. The bench observed that when a child is found in need of care and protection, before putting the child in Children's Home, there should be the application of mind by the committee; committee shall take into account the investigation report by the Child Welfare Officer as well as child's wishes.
“In this case, child is aged 13 years. Her wishes should have been given due consideration. Surely, if there is cogent and forcing reasons, the Committee will be justified to pass an order to put the juvenile in Children's Home even against her wishes and rejecting the request of the family members for custody. But, it should be strictly followed by an inquiry as contemplated in the Act and Rules with a speaking order,” the bench added.
Perusing the files, the bench observed: “When the Committee itself got a case that 2nd petitioner/grandmother had visited earlier, at least her statement should have been recorded, even though in the inquiry, only a summary procedure need be followed. A perusal of the records reveals that practically no inquiry conducted as contemplated under the Act and Rules. There is no report from the District Child Welfare Officer before coming to the conclusion that the child herein is in need of care and protection. The report available in the file is a report submitted after the issue of an order to transfer the child to Palakkad district. There is nothing on record to show that any social investigation as contemplated under Section 36 (2) or Rule 19 (3) was conducted in this case. Only the statement of the juvenile recorded. There is nothing to show that her option regarding the residence of choice was obtained and considered. “
Referring to judgment in Jose Maveli v. State of Kerala, the bench observed that poverty cannot be a ground for declining the custody/restoration of the child. “A victim/juvenile cannot be stationed in a Children's Home or in any other such shelter on the ground that there is possibility of access of the accused to the victim. It is the duty of the investigating agency or the prosecution, as the case may be, to take steps to see that such a situation is not therein. The victim shall not be the sufferer,” the bench said while ordering the release of the girl from Mahila Mandiram. The court also directed that she would be under the supervision of the District Welfare Officer, Thrissur.