IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 687 of 2011(I)
1. PRETTY RACHEL KOSHY, AGED 31,
... Petitioner
Vs
1. STATE GOVERNMENT OF KERALA,
... Respondent
2. MINISTRY OF SOCIAL WELFARE,
3. MINISTRY OF LABOUR, (GOVT. OF KERALA,
4. DISTRICT COLLECTOR,
For Petitioner :SMT.SANDHYA RAJU
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :17/01/2011
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 687 OF 2011
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Dated this the 17th day of January, 2011
J U D G M E N T
The writ petition concerns the future of 24 children hailing
from West Bengal and Nepal, who were rescued from Raj Kamal
Circus. According to the petitioner, on rescue of these children,
they were produced before the Child Welfare Committee
constituted under the Juvenile Justice (Care and Protection of
Children) Act, 2000. It is stated that, under the orders of the
Committee, 13 among them are now accommodated at Children’s
Home at Kakkanad and the remaining 11 at the Mahila
Mandiram, Chambakkara. In this writ petition, what the petitioner
complains is regarding the alleged delay on the part of the State
Government in restoring the children to their respective parents
in discharge of their obligations under the Act referred to above.
2. On the other hand, what the learned Government
Pleader submits is that, on rescue of the children, these childrens
have been accommodated in places mentioned above. It is
stated that the Government have sanctioned appropriate amount
for restoring the children to their parents and that the District
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Collector has already taken steps for identifying the parents of the
concerned children for taking appropriate action for their
restoration. When this submission was made, learned counsel for
the petitioner submits that, the children hailing from West Bengal
are from Jalpaiguri and Siliguri Districts. It is stated that now that
their whereabouts are thus identified, it is incumbent on the State
Government to discharge its duties under Section 38 of the Act. It
is stated that the situation cannot justify any further delay, and
therefore, this Court should direct restoration of the children
forthwith.
3. As far as the children who hails from Nepal are
concerned, even the submissions made by the petitioner does not
show that, the Committee, which has jurisdiction of the area of
their residence has been identified. Therefore, at this stage, it
may not be proper for this Court to pass any order concerning
those children.
4. Be that as it may, transfer of children rescued has to
be dealt with as per Section 38 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, which reads as under.
38. Transfer-(1) If during the inquiry it is found
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that he 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.
(2) Such juvenile or the child shall be escorted
by the staff of the home in which he is lodged
originally.
(3) The State Government may make rules to
provide for the travelling allowance to be paid to
the child.
5. Now that the children are found to be hailing from
West Bengal, it is necessary that the Committee shall order the
transfer of the children to the competent authority having
jurisdiction over the place of residence of the children concerned.
Expression ‘Competent Authority’ occurring in Section 38 has
been defined in Section 2(g) of the Act. In terms of the said
provision, competent authority means the Welfare Committee of
the concerned area. Therefore, in view of the provisions of Section
38, it is incumbent on the part of the respondents to restore the
children to the Committee, who has jurisdiction over the place of
residence of the children concerned.
6. In that view of the matter, it may not be necessary for
the respondents to identify or locate the parents of the children,
but rather their responsibility will end by restoring the children to
the Committee concerned. In that view of the matter and also
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taking note of the fact that the Government of Kerala have
already sanctioned necessary amounts for the restoration of the
children, it is directed that, on the production of a copy of this
judgment, the 3rd respondent, the District Collector, will take
appropriate action for transfer of the children to the Child Welfare
Committee having jurisdiction over the place of residence of the
children, who are found to be hailing from West Bengal. This the
District Collector shall do without any further delay.
7. Petitioner shall produce a copy of this judgment before
the District Collector for appropriate action in the matter.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp