Guidelines for maintenance of children home and orphanages

In view of what has been stated above,            we dispose of

Writ Petition Nos.14259 of 2014, 14604 of 2014 and 23875 of

2014 with the following direction:

             (i)     The         respective       Child   Welfare

      Committee shall take appropriate measures in

      accordance with the 2000 Act with regard to

      children           who          are    still   housed      in

      Orphanages/Children Homes out of 578 children

      who were intercepted on 24.5.2014 and

      25.5.2014 at Palakkad Railway Station and who

      came from Bihar, Jharkand and West Bengal.

             2.      I.A. No.7403 of 2015            filed by the

      petitioner in W.P(C) No.14259 of 2014 with



   regard to 16 children brought from Arunachal

   Pradesh is allowed.                Let the Child Welfare

   Committee,              Ernakulam      take   appropriate

   measures as per its decision already brought on

   record.         I.A. No.7016         of 2015 filed by the

   petitioner in W.P(C) no.14259 of 2014                 with

   regard to 29 children who were intercepted on

   20.05.2015 at the Ernakulam Junction Railway

   Station is also allowed.               The Child Welfare

   Committee, Ernakulam is directed to take

   appropriate measures in accordance with the

   2000 Act with regard to the above 29 children.

           3.      All      Orphanages/Homes       registered

   under the 1960 Act shall get registration under

   the 2000 Act which are intended                  or to be

   intended for care, protection and welfare of the

   children below 18 years.

           4.      There shall be no exemption to the

   institutions and Homes Registered under the

   1960 Act from registration under the 2000 Act


   and the Government Order dated 11.02.2010

   cannot be relied on for exemption from

   registration under the 2000 Act.

           5.      District Administration shall provide

   all assistance to                 respective Child Welfare

   Committees in each District to carry on proper

   inspection of all Orphanages/Child Homes for

   taking appropriate measures as per 2000 Act

   for children housed therein and it shall be open

   for respective Child Welfare Committees to take

   such measures under the 2000 Act as required.

           6.      No Orphanages/Child Homes shall

   receive children from outside the State except

   in accordance with the Regulations (Amended

   on 22.6.2003) framed by the State Government

   under Section 30(3) of the 1960 Act, i.e.,

   without prior approval of Orphanage Control

   Board and without the recommendation of the

   concerned State Government.

          
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT:

          THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
                                        &
                 THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

          MONDAY, THE 6TH DAY OF JULY 2015

                         WP(C).No. 14259 of 2014 (S)
                         
      RAJENDRA PRASAD, 
        Vs
      UNION OF INDIA
       Citation;AIR 2016 (NOC)182 kerala



    

           These writ petitions raise concern for young children

who are future of our country. A society shapes as its children are

shaped.    The obligation to bring up children is not only the

obligation of the parents alone, but the society and State has also

to play an affirmative role in bringing right environment for all

round development of children which is also the constitutional

philosophy. Important issues relating to child's rights, children

who are in need of care and protection and child trafficking have

arisen in these group of writ petitions. We shall consider the facts

and pleadings separately as emerged from the pleading of the

parties.



     2. This Public Interest Litigation has been filed by two

registered organizations working for the advancement of right of



children. Petitioners have approached this Court alleging illegal

transfer of children to Kerala amounting to child trafficking.

Petitioners have referred to newspaper reports; Ext.P1 dated

25.05.2014, a news item published in the New Sunday Express

with heading "Cops Rescue 456 Kids from Train", another report

with heading "Alleged Child Trafficking: 183 kids to be sent to

CWC" dated 26.05.2014, report dated 27.05.2015 with heading

"8 Held in connection with trafficking of Kids"            which were

published by the New Indian Express and lastly the newspaper

report dated 28.05.2013                with heading "Orphanages Traffic

Children to Extract Govt. Funds, Says Report".              Petitioners

contend that as per the newspaper reports, the illegal transfer of

children to Kerala are from the States of Bihar, Jharkhand and

West Bengal and they have conducted a fact finding of the

incident. Petitioners submit that these children belonging to

extremely impoverished communities were brought to the

orphanages in Kerala under the guise of giving them free

education. The children, aged from 5 to 12, were not even aware

of their location, address. It is stated that the children reached

Palakkad through Patna - Ernakulam Express. About 458 children



arrived from Bihar and Jharkhand.                 Approximately 232 girl

children were there and among them 68 children were sent to

Mukkam orphanage and rest of 164 girls were accommodated in

the local orphanages. The next day another batch of children

were found to be transferred from West Bengal. These children

had documents, but it is seen forged. Further it is stated that

money was collected from the parents to bring them to the

orphanages in Kerala.              It was found that most of the children

trafficked from Bihar are belonging to villages like Koukhaya,

Gouda. It was found that around 183 children were brought to

Calicut District Child Welfare Committee and were sent to

Government Home.               Petitioners referred to the United Nations

Protocol to prevent, suppress and punish trafficking in persons,

especially women and children adopted in November 2000. It is

pleaded that children belonging to extremely poor families were

brought promising free food and shelter and parents were

coerced to send their children to these orphanages which are not

fit institutions as per the Juvenile Justice (Care and Protection of

Children) Act, 2000. It is pleaded that children in orphanages

imply that children those who do not have parents, consequently


they become children in need of care and protection. As per the

Juvenile Justice (Care and Protection of Children) Act, 2000,

Children in need of care and protection are to be presented before

the Child Welfare Committee. It is pleaded that the institutions

like orphanages are running without being properly monitored

under the provisions of Juvenile Justice (Care and Protection of

Children) Act, 2000 and thousands of children were brought from

outside States. It is submitted that children have a right to live in

their own community and culture.            Being plucked from their

natural habitat, culture and language to an alien culture, habitat

and languages would cause immense psychological strain on the

tender minds and violation of their right to life. Petitioners in the

writ petition claim for the following reliefs:

             "A.     To issue a Writ in the nature of mandamus,

     declaration, Order or direction, directing the immediate

     Repatriation of the Children to their home states as per

     Section 38.

             B.     To issue a Writ in the nature of mandamus,

     declaration, order directing the provision of Psychosocial

     trauma Counseling to the rescued children of trafficking

     during the process of repatriation;


             C. To issue a writ of mandamus, declaration, order

      directing the orphanages within the State of Kerala to come

      within the ambit of the Juvenile Justice (Care and Protection

      of Children) Act, 2000.

             D. To issue a writ of mandamus, declaration, order or

      direction, for the immediate implementation of the State

      Rules of Juvenile Justice Care and Protection of Children Act

      2000."

      3.    A Division Bench of this Court passed an order on

05.06.2014 admitting the writ petition.            Before the Court the

Additional Advocate General stated that out of 588 children, 46

children are already sent to their respective States and 31 children

are sent back with their parents.          The Court directed that there

should be a serious investigation in the matter to know the real

cause or reason why such huge number of children from outside the

State came to Calicut and Palakkad.             The 2nd respondent was

directed to place on record the investigation being undertaken by

Crime Branch in that regard.            On the basis of the incidents two

crimes were registered being Crime No.48/2014 under Section 370

IPC and Crime No.49/2014 which were subsequently transferred to

CBCID by order dated 02.06.2014, and renumbered as Crime

No.90/Cr/ OCWIII/Pkd/14 and Crime No.91/Cr/OCWIII/Pkd/14.


      4.     An affidavit has been filed, on behalf of the 2nd

respondent-State, by the Deputy Secretary to Government, Social

Justice Department giving the details of the children who were

intercepted at Palakkad Junction on 24.05.2014 and 25.05.2014.

The details of proceedings of Child Welfare Committee, Palakkad

and Child Welfare Committee, Kozhikode was also mentioned.

Registration of crimes and arrest of certain persons in both the

crimes were stated in the affidavit. It was mentioned that the

investigation is handed over to the Crime Branch. It was stated

that 125 boys and 82 girls were handed over to the Mukkam

Muslim Orphanage. 64 boys were handed over to Anwarul Huda

Complex Orphanage, Vettathur and 47 children were restored to

their parents, 46 were repatriated to         Jharkhand, 7 were

repatriated to Bihar and 57 to Bengal. The names of children and

other details were also produced. Learned Government Pleader

also placed before the Court the proceedings of Child Welfare

Committees in the context of above two incidents dated

24.05.2014 and 25.05.2014.

      5.    In the writ petition an application was submitted by

Mukkom Muslim Orphanage for being impleaded as respondent.


The applicant in the affidavit pleaded that the applicant is an

Orphanage established way back in the year 1956 and has been

registered under the provisions of the "Orphanages and other

Charitable      Homes         (Supervision and Control) Act,  1960"

(hereinafter referred to as 'the 1960 Act'). It is pleaded that from

the year 2007 onwards the Orphanage is admitting students from

other States.        The applicant was impleaded as additional 10th

respondent. Another application for impleadment had been filed,

being I.A. No.8110 of 2014, by two persons namely Rev. Father

Mathew K. John, President of Association of Orphanages and

Charitable Institutions, Kerala and One T.K. Pareekutty Haji,

Secretary of the Association. The application was allowed and

they were impleaded as additional respondents 8 and 9.           The

additional respondents 8 and 9 have stated in the affidavit that

the applicants are office bearers, i.e., President and Secretary of a

registered Association and it was stated that the Association has

1800 member institutions consisting of Orphanages and rescue

homes.

     6.     On the direction of the Court, the Central Bureau of

Investigation(CBI) has also filed an affidavit dated 22.08.2014



wherein it was stated that CBI is willing to take investigation of

the cases as it is in large scale and spread over four States. The

State by an affidavit has also referred to the proceedings pending

before the Apex Court in W.P.(Crl) No. 102/2007 in the case of Re-

exploitation of Children in Orphanages in State of Tamil Nadu v.

Union of India and others. The report filed by Amicus Curiae was

also brought on record. I.A. No.7403 of 2015 was filed by the

petitioner mentioning about the influx of children from outside

states.    Another batch of 16 children from Arunachal Pradesh

ranging ages from 5 to 12 years were produced on 25.05.2015

before the Child Welfare Committee (for short 'CWC'), Ernakulam.

The Child Welfare Committee directed the Janaseva Sisu Bhavan,

Aluva to house the above children for the time being. The CWC,

Ernakulam submitted a report dated 17.06.2015 where it took a

decision that 16 children should be repatriated in their home

district in Arunachal Pradesh. By an order passed on 18.06.2015,

the Janaseva Sisu Bhavan, Aluva has also been impleaded as

additional 11th respondent. The 11th respondent appeared and

filed a counter affidavit wherein it is is stated that the Janaseva

Sisu Bhavan is a charitable home for boys and girls which has

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        9

been registered under the Juvenile Justice (Care and Protection of

Children) Act, 2000 as well as under the Orphanages and other

Charitable Homes (Supervision and Control) Act, 1960.         It is

pleaded that Jena Seva Sishubhavan is competent to cater to the

needs of destitute children who are given education at the

expense of Jena Seva Sishubhavan and no Government grant is

received by the Jena Seva Sishubhavan. It was stated that one

Probir Kumar Chakma came to Jena Seva Sishubhavan from

Arunachal Pradesh bringing children between the age group of 8

and 11 years along with a certificate from CWC, Lohid District of

Arunachal Pradesh dated 14.05.2015 and the children were

produced before the CWC, Ernakulam by the Sisu Bhavan. The

Jena Seva Sishubhavan pleads that the children be allowed to

continue at Jena Seva Sishubhavan itself.

     7. The petitioner has filed I.A. No. 6523 of 2015 in which the

following prayers were made:

        "a.     Issue necessary directions for an emergent

        enquiry into the incident of rescue of the 29

        children under the direction of the Superintendent

        of Police and action be taken against the errant

        officials.

 WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015      10

        b.      Issue urgent directions for the mandatory

        following       of protocol     regarding enquiry and

        prosecution as envisaged under the Juvenile Justice

        care and Protection Act 2000 under the supervision

        of the Juvenile Justice Committee of the Hon'ble

        High Court."

     8. In the affidavit filed in support of the application

reference has been made to a batch of 29 children who were

brought from the States of Bihar, Bengal, Rajasthan and Delhi to

Kerala. It was stated that on enquiry it is revealed that 9 young

children of various ages ranging from 8 to 15 were freshly

brought to Kadheejathul Kubra Islamic Complex, Nettoor. It is

stated that the said children were brought to Kerala on

20.05.2015 which was reported in a newspaper, Times of India

dated 21.05.2015 with the heading " 29 Kids brought to state

with no proper papers".              About 20 kids were staying in the

abovementioned orphanage since last 2 years. The police had

informed the Childline officials and children were taken to NGO's

office. Thereafter they were brought before the CWC.

     9. In the writ petition an application has been filed by the

Kadheejathul Kubra Islamic Complex, Nettoor for impleadment. In

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       11

the affidavit it has been claimed that the applicant is a Society

registered under the 1956 Act as well as 1960 Act. It is stated

that the 20 children who were intercepted by Railway Police on

20.05.2015 are the children             who were earlier staying in the

orphanage and 9 new children were also there who are the close

relatives or siblings of the 20 children already staying. It is stated

that the Society produced documents before the CWC, however,

CWC directed the said children to be housed at children's home.

W.P.(C) No.23875 of 2014

      10. This is a suo motu proceedings initiated on a newspaper

report dated 25.05.2014 published in the newspaper "The Hindu"

with heading "Suspected Child Trafficking: over 450 children

detained".      In the writ petition, State of Kerala through Chief

Secretary and State of Kerala through Secretary, Social Welfare

Department        and      Secretary,   Kerala State  Commission    for

Protection of Child Rights, Thiruvananthapuram were impleaded

as parties. The writ petition was directed to be listed along with

W.P.(C) No. 14259 of 2014.              Learned Advocate General was

allowed time to file a detailed counter affidavit. He was directed

to give the details of each orphanage and details regarding the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       12

children who live in the respective orphanage with all relevant

details. In the writ petition an affidavit has been filed by the 2nd

respondent. In the counter affidavit a stand has been taken by

the State that the Orphanages which are registered under the

1960 Act, need not be registered under the 2000 Act. Reference

of Government Order, G.O.(MS) No.12/2010/SJD dated 11.02.2010

of the State Government is mentioned.            Reference of the

judgment of High Court in Crl(MC) No.4804/2008 dated

15.02.2012 reported in 2012(2) KLT 161 (N. Balachandran v.

State of Kerala and others) has also been made.             Another

judgment relied is the judgment of the High Court in Crl(RP)

No.4423 of 2006 dated 13.04.2007. It is further pleaded that

there is a clear differentiation between 1960 Act and 2000 Act.

Admission of children from the other States is made with prior

approval of the Orphanages' Control Board based on the

recommendations made from the State Government concerned.

Details of cases registered on the basis of incident dated

24.05.2014, progress of investigation was also mentioned in the

counter affidavit. A counter affidavit has also been filed by the 3rd

respondent i.e. Kerala State Commission for Protection of Child

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       13

rights, Thiruvananthapuram.             In the counter affidavit of 3rd

respondent it is mentioned about its order dated 29.08.2014

where it has recommended the State Government to revoke the

Government Order dated 11.02.2010 by which Government

granted exemption to the Orphanages from registering under the

2000 Act.       The 3rd respondent pleads that all children homes

including the orphanages have to be registered under the 2000

Act.    The 3rd respondent also referred to its order dated

02.06.2014 which was the proceedings initiated suo motu by the

3rd respondent on the media reports regarding 456 children

brought from other States to Kerala without proper records.

W.P.(C) No.14604 of 2014

     11. The petitioner herein claims to be an organization

formed for the purpose of fighting against corruption and

protection of human rights in the society. The petitioner pleaded

that though crime No.48/2014 has been registered, the State

Police is maintaining lethargy in the investigation and the

investigation of the Crime is going on in a snail's pace manner.

No investigation was conducted about the involvement of

orphanage authorities allegedly involved in the child trafficking.

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       14

Petitioner claims that an interstate racket appears to be

functioning in the child trafficking. It was pleaded that the instant

case    is   having        interstate   and  international  ramifications

warranting an investigation by CBI. The children from Jharkhand,

West Bengal and Orissa were involved in the trafficking.

Petitioner has prayed for following relief:

             "a. Issue a writ of mandamus or any other writ, order
      or direction directing the 1st respondent to entrust the

      investigation of Crime No.48/2014 of Palakkad Railway Police

      Station to Central Bureau of Investigation."

      12. A statement has been filed by the 2nd respondent. The 5th

respondent CBI also filed an affidavit wherein it is stated that the

CBI is willing to take up the investigation of the cases. A memo has

also been filed by the Special Government Pleader bringing on

record the application filed in W.P.(Crl.) No.102/07 by amicus curiae

before the Apex Court.

W.P.(C) No. 15844 of 2015

      13. The petitioner in this writ petition claims to be a charitable

society registered under the Travancore-Cochin Literary, Scientific

and Charitable Societies Registration Act, 1955.          The petitioners

claim to be a Society established with the object of working with the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       15

upliftment of the orphans, destitutes and poor among the Muslim

Community. Petitioner also claims to have registration under the

Orphanage Control Board of Kerala under the 1960 Act. Petitioner's

case is that 23 children who were the inmates of the institution went

to their native place on 25.03.2015 along with the teachers and

expenses were met by the petitioner's institution. The 20 children

out of the above 23 and 9 new children came to Ernakulam on

20.05.2015. The children were asked documents to be shown by

the Railway Police Constable, who informed the Childline and the

childline officials arrived at the Railway Station and thereafter a

member of CWC also reached the spot. Thereafter the children

were taken to Sneha Bhavan at Ernakulam South.                   Petitioner

appeared before the CWC on 22.05.2015 and submitted

documents. CWC directed the petitioner to bring the letters from

CWC/Department of Social Justice from the respective home districts

of the boys regarding the care and protection of the boys in their

jurisdiction. The petitioner in the writ petition has prayed for the

following reliefs:

             "A. Issue a writ of mandamus or any other appropriate
      writ, order or direction directing the respondents to release the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       16

      29 children taken custody by the 2nd respondent, to the petitioner

      forthwith.

             B. Issue a writ of mandamus or any other appropriate writ,

      order or direction directing the 2nd respondent to return all the

      original documents pertaining to the said children taken

      possession of by it from the petitioner to the petitioner forthwith."

      14. The CWC has filed a counter affidavit in the writ petition.

It is pleaded that the recognition of the petitioner Society has

come to an end by 01.05.2015. The documents submitted by the

petitioners require verification.         An application, I.A. No.8139 of

2015 has been filed by the petitioner to receive certain

documents. Reply affidavit has also been filed by the petitioner.

      15. In W.P.(C) No.14259 of 2014 the pleadings are complete

and all the parties are represented. It is being treated as the

leading writ petition and it shall be sufficient to refer to the

pleadings in that writ petition for deciding all the writ petitions.

      16. We have heard Smt.Sandhya Raju for the petitioner in

W.P.(C) No.14259 of 2014, Sri.T.A.Shaji(Sr.) assisted by Sri.B.H.

Mansoor, learned counsel appearing for the petitioner in W.P.(C)

No.14604 of 2014, Sri.T.Krishnanunni (Sr.) assisted by Sri.Paul

Kuriakose for the petitioner in W.P.(C) No.15844 of 2015,

Sri.N.Nandakumara Menon (Sr.) appearing for the Association of

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       17

Orphanages         and       Charitable   Institutions, Kerala, Sri.  P.

Chandrasekhara Pillai, learned Standing Counsel appearing for

CBI, Sri.B.S. Swathy Kumar for 11th respondent in W.P.(C)

No.14259 of 2014, Sri.Subhash Chand appearing for the Child

Welfare Committee, Ernakulam, Sri.K.P. Dandapani, learned

Advocate General and Sri.T.T. Muhamood, learned Special

Government          Pleader.          We  have    also heard   Sri.Devan

Ramachandran, Amicus Curiae.

     17. Learned counsel for the petitioner in W.P.(C) No.14259 of

2014 Smt.Sandhya Raju in support of the Public Interest Litigation

submits that the incidents dated 24.05.2014 and 25.05.2014

where 578 children were brought from the States of Bihar,

Jharkhand and West Bengal is a case of child trafficking. Children

are brought into the State of Kerala without there being any valid

documents who need to be repatriated to the respective State

and united with their family which is in the interest of the

children.    It is submitted that children of tender age who are

brought by certain interested persons/agents to different

orphanages in the State of Kerala have no idea as to what is

happening with them and they are the victim of the trafficking. It

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       18

is submitted that the orphanages which claim that children were

brought to be housed in the orphanages have no jurisdiction or

authority to take the children from outside the State.              The

orphanages which are registered only under the 1960 Act have no

right to admit any child who is in need of care and protection, the

orphanages being not registered under the 2000 Act.                  All

orphanages and other institutions of child care are required to be

registered under the 2000 Act and without registration under

2000 Act, no orphanages or any children home can claim housing

any child. The orphanage are unfit to take custody or take care of

children in need of care and protection. The CWCs are required to

repatriate the children to their respective homes.           One of the

principles enshrined under the 2000 Act and the rules is to restore

the child to his family so that it may grow in the family which can

provide proper care and comfort.             It is submitted that family

responsibility is one of the fundamental principles provided in the

rules. The orphanages cannot claim that they can admit children

in their home.         The       fact that orphanages are claiming that

children's parents have sent them to the orphanage itself proves

that the children who are being sent to the orphanages are

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015         19

children in need of care and protection and they clearly fall under

Section 2(d) of the 2000 Act.              Referring to the incident of 29

children brought from different States to Ernakulam on 20th May,

2015 and 16 children brought from Arunachal Pradesh on

20.05.2015, it is submitted that these are all cases of child

trafficking. Children are brought by certain agents by practicing

fraud on the parents.                It is submitted that the State has

committed error in granting exemption to the orphanages not to

get registered under the 2000 Act.               Government Order dated

11.02.2010 granting such exemption is beyond the power of the

State.   It is further submitted that in view of the regulations

framed under the 1960 Act as amended in 2013 no child can be

admitted by an orphanage without prior approval of the

Orphanage Control Board and in the cases in hand there is no

such permission of Orphanage Control Board with regard to any

child nor any such permission has been claimed. It is submitted

that 29 children who were brought on 20.05.2015, cannot be

handed over the Kadheejathul Kubra Islamic Complex, Nettoor,

as the said Society is not registered under the 2000 Act and it's

registeration under the 1960 Act has also expired.

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       20

      18.    Learned         counsel    appearing for the Orphanages

Association, Sri.N.Nandakumara Menon, submits that the State

Government has constituted a Board for controlling the

institutions coming under the 1960 Act. The allegations made by

the petitioner against Orphanages and Charitable Homes are

based on the newspaper reports and are unsustainable.            It is

submitted that on the basis of certain stray incidents as

mentioned by the petitioner in the writ petition a cloud of

suspicion cannot be created on the functioning of the large

number of orphanages and other Juvenile Homes in the State.

The officers of Social Justice Department are regularly monitoring

and controlling the functions of orphanages and other charitable

homes in Kerala. It is submitted that parents who come from very

poor families entrust their children to the Institutions to look after

their children by providing Shelter, Food, Education and Care.

The Orphanages in the State are receiving only paltry sum of

Rs.700/- per child as grant whereas an average of minimum

Rs.3,500/- is being spent for the welfare of every child by

collecting donations and other voluntary contributions from the

public. The provisions of Juvenile Justice (Care and Protection of

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       21

Children) Act, 2000 and Rules framed thereunder are not

applicable to the functioning of the Orphanages in the State. It is

submitted that the bringing of children in the Orphanages with

the consent of parents of the children cannot be said to be

trafficking and there is no occasion for directing any CBI enquiry

in the matter.

      19. Learned counsel appearing for the Kadheejathul Kubra

Islamic Complex, Nettoor, submits that 29 children who were

intercepted at the Ernakulam Railway Station in May, 2015 are

required to be handed over to the Complex since 20 of the

students were inmates of the complex. It is submitted that the

decision of CWC not to hand over the 29 children is not correct

which has already been challenged separately by filing W.P.(C)

No.15844 of 2015.             It is submitted that the children who are

admitted in the Complex/Orphanage cannot be said to be child in

need of care and protection. It is submitted that the definition of

child in care and protection is contained in Section 2(d) of the 2000

Act, which is not applicable to the children who are admitted in the

Complex or the Orphanages.              The children who are admitted in

the orphanages are children sent to the Orphanages with the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       22

consent of parents, hence provisions of the 2000 Act are not

applicable. It is submitted that the functions of the Complex and

other orphanages are governed by the 1960 Act under which they

are registered. It is submitted that in so far as the Complex is

concerned, it has time of one year from 01.05.2015 to remove the

deficiencies as contained in the regulation and get it registered.

It is submitted that there is no requirement of               child

homes/orphanages to be registered under the 2000 Act since they

are already registered under the 1960 Act and governed by

regulations therein. The bringing of children in the orphanages

cannot be held to be trafficking and there is no necessity to direct

any CBI enquiry in the matter.

      20. Learned Special Government Pleader submitted that

Orphanages are registered under the 1960 Act and the State

Government has granted exemption to them from registration

under the 2000 Act by virtue of the Government Order dated

11.02.2010. It is submitted that with regard to the incidents on

24.05.2014 and 25.05.2014 Crime No.48/2014 and 49/2014 have

already been registered which has now been entrusted to the

Crime Branch. Persons have been arrested and large number of

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       23

persons have been questioned by the investigation team. It is

submitted that the State is taking all measures as required by the

2000 Act for protection of children who are in need of care and

protection. He submitted that out of the children who came to

Palakkad on 24.05.2014 and 25.05.2014 several children have

been permitted to go along with their parents and several of them

were repatriated to the home State at State's expenses.

Providing education and food to children alone does not be

treated as trafficking. Whether there is any exploitation on the

part of Orphanage authorities is to be enquired into by the State

police. The question of applicability of Section 2(d) of the 2000

Act has been interpreted by this Court reported in Jose Maveli v.

State of Kerala [2007 (2) KLT 761] wherein it has been declared

that mere financial constraints of a family shall not be treated as

a criterion for determining the jurisdiction of a child under the

Juvenile Justice Act. Children of poor family does not come under

the Juvenile Justice Act, only because of their poverty. The State

Government has taken a policy decision to the effect that the

admission of other State children will be only based on the

recommendations of the concerned State Government. Further

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        24

minimum standard of care and protection of children in

orphanages are being revised.

       21. Sri.Subhash Chand, learned counsel appearing for CWC

in W.P.(C) No.15844 of 2015 has submitted that the children

staying     in      institutions       which   are  being   claimed  as

Orphanages/Complex are child in need of care and protection and

fell within the jurisdiction of Child Welfare Committee.           It is

submitted that the 2000 Act is applicable on the child who are

admitted in the orphanages.                It is submitted that the writ

petitioner      in W.P.(C) No.15844 of 2015, as on date has no

registration under the 1960 Act. It is submitted that the children

who were intercepted on 20.05.2015 at Ernakulam Railway

Station (total 29 numbers) are the children in need of care and

protection, with regard to them CWC has already taken decision.

The said children are housed in children's home and providing all

facilities including education in 'Sarva Siksha Abhiyan'.

       22. Sri.Chandrasekhara Pillai, learned Senior Counsel

appearing on behalf of CBI submitted that allegations which are

raised in the writ petitions disclose serious matters and the CBI is

ready to investigate the crime if High Court so directs.

   WP(C) No. 14259, 14604, 23875 of 2014
     and W.P.(C) No. 15844 of 2015       25

Considering the large scale investigation spread over four States,

it is only CBI which can carry out the investigation.

       23. Sri.Devan Ramachandran, learned Amicus Curiae

submits that the entire field is covered by the 2000 Act. It is

submitted that the fundamental principle of Juvenile Justice is a

principle of best interest, principle of family responsibility and

child is to be restored to his own family at the earliest. It is

submitted that under Section 34(3) of the 2000 Act all institutions

dealing with children who needs care and protection are required

to be registered under the 2000 Act.           The 1960 Act  stood

repealed by the Juvenile Justice Act, 1986. The relevant records

and documents do not disclose that the children have been

ordered by the CWCs, of their ordinary place of residence in

Jharkhand, Bihar or West Bengal, to be children in need of care

and protection. When the children have not been found to be in

need of care and protection by the CWCs of the place where they

ordinarily reside, it would be then impossible to accommodate

them in any Children's Home even in their home States much less

in Kerala. The stand of the Government of Kerala that the child

homes/orphanages in Kerala do not require registration under the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       26

2000 Act if it has a registration under the 1960 Act is illegal and

unsustainable.          The Apex Court vide its judgment dated

16.12.2013 in W.P(Crl.) No.102 of 2007 has also directed all State

Governments to answer if all the institutions run by it or by

voluntary organizations for children in need of care and protection

have been registered under the 2000 Act and also to report if any

such unregistered institutions are still being run. The importance

of registration of the institutions is seminal since it is only then

they can be held accountable and made responsible to their

duties and responsibilities under the 2000 Act including

maintenance of the standards of infrastructure, nutrition, diet etc.

Now the words, 'Orphan' and 'Orphanage' are not used in the Act.

In substitution the usage is 'Child in need of care and protection'

and 'Children's Home'. This change is also the need of the hour to

foster dignity and worth in the child who no longer is an orphan but

a child of the State who is in need of support, encouragement and

compassion in addition to the care and protection of the society.

The claim of the institution that children have been transferred

from other States as per the request of their parents cannot be

accepted in view of the statutory scheme that only a child who is

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        27

certified or ordered by a competent CWC to be a child in need of

care and protection can be accommodated in an institution. The

transfer of a child in the manner as has been pleaded raise

suspicion of exploitation of the child so transferred.

       24. We have considered the submissions of learned counsel

for the parties and perused the records.

      25. The issues which arise for consideration in this group of

Writ Petitions are:

       I.   Whether the children, who were intercepted by the

             Railway Police on 25th May, 2014 and 26th May,

             2014 at Palakkad Railway Station and those (29 in

             number) intercepted on 20th          May, 2015 at

             Ernakulam Junction Railway station and 16 children

             brought before the Jena Seva Sishubhavan, Aluva

             on 20.5.2015 can be said to be children in need of

             care and protection within the meaning of Section

             2(d) of the 2000 Act?

       II.   Whether the child who is housed in an orphanage

             registered under the 1960 Act can be said not be a

             child in need of care and protection?

       III.  Whether the institutions/orphanages, which are

             registered       under    the Act, 1960 also  need

             registration under the 2000 Act to house a child,

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015          28

           who is in need of care and protection within the

           meaning of Section 2(d) of the 2000 Act?

   IV. Whether Section 34(3) of the 2000 Act mandates

           obtaining               registration     by       all

           institutions/orphanages            run  by    private

           organisations, which are housing children, who

           need care and protection?

   V.     Whether the decision of the State Government vide

           its Government Order No.G/O(MS)No.12/2010/SWD

           dated        11.2.2010       granting  exemption   to

           institutions, which are already registered under the

           1960 Act from further registration under the 2000

           Act is valid?

   VI. Whether the orphanages/institutions registered

           under the 1960 Act can admit child pertaining to

           outside the State of Kerala without prior approval

           of the Orphanage Control Board and without there

           being recommendation of the State Government

           concerned?

   VII. Whether the petitioners in W.P(C).No.15844 of 2015

           are entitled for a direction to the Child Welfare

           Committee, Ernakulam to release 29 children

           taken into care and protection of the second

           respondent?

   VIII. Whether the crimes registered on the basis of the

           incidents dated 24th May, 2014 and 25th May, 2014

           being Crime Nos.48/2014 and 49/2014 (which have

           subsequently been entrusted to the Crime Branch

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       29

           for investigation) and other similar crimes registered

             pertaining to trafficking under Section 370 IPC

             need to be entrusted for investigation to the CBI?

       IX. To what reliefs the petitioners in these group of Writ

             Petitions are entitled?

      26. Before we proceed to consider the above issues it is

relevant to note certain facts pertaining to child right, some

constitutional provisions and history of legislation for fully

appreciating the content of the present legislation regulating the

field. The Constitution of India contains various provisions, which

are measures to promote and protect children. Article 21A

inserted by the Constitution (Eighty-sixth Amendment) Act, 2002

with effect from 1.4.2010 is one of the most important

fundamental rights given to children between the age of 6 and 14

years. The State is enjoined to provide free and compulsory

education to all children of the age of 6 to 14 years in such

manner as the State may, by law determine. Article 39(f) enjoins

the State to direct its policy towards securing that the children are

given opportunities and facilities to develop in a healthy manner

and in conditions of freedom and dignity and that childhood and

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       30

youth are protected against exploitation and against moral and

material abandonment. Article 39(f) is quoted as below:

             "39. Certain Principles of policy to be

      followed by the State. - The State shall, in

      particular, direct its policy towards securing-

                      xx             xx    xx


             (f) that children are given opportunities and

      facilities to develop in a healthy manner and in

      conditions of freedom and dignity and that childhood

      and youth are protected against exploitation and

      against moral and material abandonment."

     27. The fundamental duties under Article 51A(k), which has

been inserted in the Constitution to facilitate the fundamental

rights under Article 21A, is to the following effect:

             "51A. Fundamental duties.- It shall be the

      duty of every citizen of India-

             (k) who is a parent or guardian to provide

      opportunities for education to his child or, as the case

      may be, ward between the age of six and fourteen

      years."

      Thus, it is the constitutional duty of a parent or guardian to

provide opportunities for education to his child or ward between

the age of 6 and 14 years. The first legislation framed by the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       31

Parliament is the Women's and Children's Institutions (Licensing)

Act, 1956, which provided that after the commencement of the

Act, no person shall establish or maintain an institution, except in

accordance with the licence granted under the Act. Section 4

provided that every person shall make an application to the

licensing authority in such form and containing such particulars as

may be prescribed. Then came the Orphanages and other

Charitable Homes (Supervision and Control) Act, 1960, which

repeals the above mentioned 1956 Act. Section 2(c) defines

"child" and Section 2(d) defines "home". Section 2(d) reads as

under:

             "2. Definitions.- In this Act, unless the context

     otherwise requires,-

             (d) 'home' means an institution, whether called

     an orphanage, a home for neglected women or

     children, a widows' home, or by any other name,

     maintained or intended to be maintained for the

     reception, care, protection and welfare of women or

     children;"

     28. Section 13 provided that after the commencement of the

Act, no person shall maintain or conduct any home except under,

and in accordance with the conditions of a certificate of

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       32

recognition granted under the Act. Section 14 provided for

making application. Then came the Juvenile Justice Act, 1986 to

provide for the care, protection, treatment, development and

rehabilitation of neglected or delinquent juveniles and for the

adjudication of certain matters relating to and disposition of

delinquent      juveniles.        The   1986 Act repealed any   law

corresponding to 1986 Act in force in States. On 20th November,

1989 the General Assembly of the United Nations adopted the

Convention on the Rights of the Child wherein a set of standards

to be adhered to by all State parties in securing the best interests

of the child has been prescribed. The Government of India ratified

the convention on 11th December, 1989. The Parliament came up

with the legislation, namely, the Juvenile Justice (Care and

Protection of Children) Act, 2000 (hereinafter referred to as 'the

2000 Act') bearing in mind the standards prescribed in the

Convention on the Rights of the Child, the United Nations

Standard Minimum Rules for the Administration of Juvenile Justice,

1985 (The Beijing Rules), the United Nations Rules for the

Protection of Juveniles Deprived of their Liberty (1990), and all

  WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015        33

other relevant international instruments. The preamble of the

2000 Act provides as follows:

             "To provide for the care, protection, treatment,

     development           and      rehabilitation of neglected or

     delinquent juveniles and for the adjudication of certain

     matters relating to, and disposition of, delinquent

     juveniles the Juvenile Justice Act, 1986 (53 of 1986)

     was enacted by Parliament. Several provisions of the

     Constitution including clause (3) of article 15, clauses

     (e) and (f) of article 39, articles 456 and 47 also impose

     on the State a primary responsibility of ensuring that all

     the needs of children are met and that their basic

     human rights are fully protected. On 20th November,

     1989 General Assembly of the United Nations adopted

     the Convention on the Rights of the Child wherein a set

     of standards to be adhered to by all State parties in

     securing the best interests of the child has been

     prescribed. The Convention emphasises social re-

     integration of child victims, to the extent possible,

     without        resorting       to  judicial  proceedings. The

     Government of India, having ratified the Convention,

     has found it expedient to re-enact the existing law

     relating to juveniles bearing in mind the standards

     prescribed in the Convention on the rights of the child,

     the United Nations Standard Minimum Rules for the

     Administration of Juvenile Justice, 1985 (The Beijing

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       34

     Rules), the United Nations Rules for the Protection of

     Juveniles Deprived of their Liberty (1990), and all other

     relevant international instruments. To achieve this

     objective the Juvenile Justice (Care and Protection of

     Children) Bill was introduced in the Parliament."

     29. Issue Nos. I and II being inter connected are being

taken together. Section 2(d) of the 2000 Act, which defines "child

in need of care and protection" is to the following effect:

             "2(d) 'child in need of care and protection'

     means a child-

             (i) who is found without any home or settled

     place or abode and without any ostensible means of

     subsistence,


             (ia) who is found begging, or who is either a

     street child or a working child,

             (ii) who resides with a person (whether a

     guardian of the child or not) and such person-

                      (a) has threatened to kill or injure the child
             and there is a reasonable likelihood of the threat
             being carried out, or
                      (b) has killed, abused or neglected some
             other child or children and there is a reasonable
             likelihood of the child in question being killed,
             abused or neglected by that person,

              (iii) who is mentally or physically challenged or

      ill children or children suffering from              terminal

 WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015      35

      diseases or incurable diseases having no one to

      support or look after,

             (iv) who has a parent or guardian and such

      parent or guardian is unfit or incapacitated to

      exercise control over the child,

             (v) who does not have parent and no one is

      willing to take care of or whose parents have

      abandoned or surrendered him or who is missing and

      run away child and whose parents cannot be found

      after reasonable injury,

             (vi) who is being or is likely to be grossly

      abused, tortured or exploited for the purpose of

      sexual abuse or illegal acts,

             (vii) who is found vulnerable and is likely to be

      inducted into drug abuse or trafficking,

             (viii) who is being or is likely to be abused for

      unconscionable gains,

             (ix) who is victim of any armed conflict, civil

      commotion or natural calamity;"

     30. As noted above, the children, who were intercepted on

25th and 26th May, 2014 at Palakkad Railway Station and on 20th

May, 2015 at Ernakulam Junction Railway Station were produced

before the respective Child Welfare Committee. The Child Welfare

Committee proceeded treating the children as children in need of

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       36

care and protection and has taken different measures including

housing them in different Government homes and children

homes. Some of the children have also been repatriated to their

respective States, as noted above, by the Child Welfare

Committee. Some of the children were permitted to go along with

their parents by the Child Welfare Committee as noted above. The

Child Welfare Committee, thus, treated them children in need of

care and protection.

       31. Learned counsel appearing for the Mukkom Muslim

Orphanage and the Khadeejathul Kubra Islamic Complex submit

that those students, who were to be housed in their orphanages

and some other orphanages cannot be held to be children in need

of care and protection, since none of them are covered by the

definition of Section 2(d) of the 2000 Act, hence, the Child Welfare

Committee has no jurisdiction to proceed to consider their claims.

      32. In this context, it is necessary to look into the case set

up by the association of orphanages and respective orphanages.

A counter affidavit has been filed by respondents 8 and 9 in W.P

(C).No. 14259 of 2014. In paragraph 6 of the counter affidavit the

following has been stated:

  WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015        37

             "6. It is submitted that the admission of children

     to the various Orphanages in the State are given on a

     voluntary basis at the instance of very poor and

     economically backward Parents or Guardians. It may

     kindly be noted that the poor children so admitted to

     the Orphanages as inmates are sent to nearby schools

     and other Educational Institutions. It is pertinent to

     note that the inmates of the Orphanages are mainly

     from the Local area and the needs of the children are

     well taken care of by the Orphanages functioning under

     the Supervision and Control of the Statutory Board

     Constituted under Act 10 of 1960. It is submitted that

     the Parents who come from very poor families entrust

     their children to the Institutions to look after their

     children by providing shelter, food, education and

     care."

     33. The case of the respondents is that parents who come

from very poor family entrust their children to the institutions to

look after their children by providing shelter, food, education and

care. The children, who are admitted in the orphanages are not

without parents. I.A.No.7016 of 2015 has been filed by the

Khadeejathul Kubra Islamic Complex for impleading themselves

as additional respondent. A separate Writ Petition being W.P(C).

No.15844 of 2015 has also been filed by the Khadeejathul Kubra

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       38

Islamic Complex. In the Writ Petition it has been stated that the

Islamic Complex is a Society registered under the Travancore-

Cochin Literary, Scientific and Charitable Societies Registration

Act, 1955. It was established in the year 1999 for the upliftment

of the orphans, destitutes and poor among the Muslim

Community. The petitioner institution has facilities to provide

boarding other children also who are in need of support for their

educational needs. It is pleaded that "all the children are admitted

to the boarding based on application from their respective

parents". The case of the orphanage, thus, is that they are

admitting orphans, destitutes and poor. It is submitted that the

students are taken on the application/request of the parents.

Orphanage is a place where an orphan is kept. 'Orphan' is defined

in Black's Law Dictionary as follows:

             "Orphan. - 1. A child whose parents are dead. 2.

     A child with one dead parent and one living parent. -

     More properly termed half orphan. 3. A child who has

     been deprived of parental care and has not been

     legally adopted; a child without a parent or guardian."

      34. P.Ramanatha Aiyar's Law Lexicon defines 'orphan' and

'orphanage' in the following manner:

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        39

           "Orphan. 'ORPHAN' means a person, none

   of whose parents is alive and is in receipt of

   monthly widow/widower pension. (Employee's

   Pension Scheme, 1995, S.2(xi)

           A fatherless child, or an illegitimate child of a

   deceased mother. According to more general

   usage a minor who has lost both of his or her

   parents. (Bouvier) Sometimes the term is applied

   to a person who has lost only one of his or her

   parent.

           Orphanage. An institution or house for

   orphans; orphan asylum: an asylum or home for

   destitute orphan children; and institution for the

   care of destitute orphans.

           The term affords the suggestion of a charity,

   and was held to have been used with the intent to

   do so by one who collected money, ostensibly for

   an alleged "orphanage", the Courts remarking,

   lexicographers are not unanimous, but lean

   toward a meaning for 'orphanage' or 'orphan

   asylum' suggesting destitution of those relieved,

   rather than a profit seeking enterprise."

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       40

      35.The word 'orphan' has not been defined in the 1986

Act, 2000 Act or any of the Rules framed thereunder. For the

first time the definition of 'orphan' has been included in Rule

2(n) of the Kerala Juvenile Justice (Care and Protection of

Children) Rules, 2014, which is to the following effect"

             "(n) 'orphan' means a child who is without

      parents or not having willing and capable legal or

      natural guardian."

From the definition of 'orphan' as noted above, the general

notion of 'orphan' is, "a child whose parents are dead". The

'orphanage' is an institution or house for orphans. The

definition in Rule 2(n) as quoted above indicates that the

orphan is one who is without parents or not having willing

and capable legal or natural guardian.

      36. The case of 'orphanage' as noted above is that

throughout they are admitting students from outside Kerala

on the request of the parents/on application submitted by

parents. Thus, even as per the definition given in 2(n) of the

Rules, 2014, the students, who are being admitted by

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       41

orphanages and other institutions from outside Kerala, are

children who are in need of care and protection.

     37. The fact that a parent is sending his child to an

orphanage for education purpose as claimed by the

respondents orphanage clearly indicates that the child is in

need of care and protection. A child is sent to orphanage

when the parents are unable to provide education to the

child or to take proper care of the child. As noted above.

Article 51A(g) now casts a duty on the parent to provide

education to child. When a parent is sending his child to an

orphanage, he is abdicating his duty to provide education to

the child. Section 2(d)(iv) of the 2000 Act provides as under:

             "(iv) who has a parent or guardian and such

     parent or guardian is unfit or incapacitated to

     exercise control over the child."

     38. There may be other cases, which may be covered by

other sub-clauses of Section 2(d) of the 2000 Act, by which a child

has to be held to be a child in need of care and protection. For

finding out whether a child is covered by the definition of Section

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       42

2(d) of the 2000 Act, each case and circumstance by which the

child is being sent to the State of Kerala in an orphanage or home

has to be looked into. Thus, we are not persuaded to accept the

submission of learned counsel for the Association of orphanages

as     well      as       learned       counsel appearing for    the

orphanages/institutions in these Writ Petitions that children, who

are admitted in the orphanages/institutions are not children, who

are in need of care and protection.

      39. When a parent abdicates his constitutional duty to

provide education to his children, there is no difficulty in

presuming that such parent or guardian is unfit to exercise control

over the child. As noted above, now every child between the age

of 6 and 14 years is required to be provided free education. When

a State is providing for education to every child, sending the child

to the orphanage is nothing but abdication of duty of a parent. It

is relevant to note that both the Juvenile Justice (Care and

Protection of Children) Rules, 2007 framed by the Central

Government and the Kerala Juvenile Justice (Care and Protection

of Children) Rules, 2014 contain fundamental principles of

juvenile justice and protection of children. It is useful to refer to

 WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015      43

Rule 3 of the Kerala Juvenile Justice (Care and Protection of

Children) Rules, 2014.

             "3. Fundamental principles to be followed in

     administration of these rules.- (1) The Government, the

     Court, the Juvenile Justice Board, the Child Welfare

     Committee or other competent authorities or agencies,

     as the case may be, while implementing the provisions of

     these rules shall abide and be guided by the principles,

     specified in sub-rule (2).

             (1) The following principles shall, inter-alia, be

     fundamental to the application, interpretation and

     implementation            of  the Act and the rules  made

     hereunder:

                             xx        xx


             II. Principle of dignity and worth:

             (a) Treatment that is consistent with the child's

     sense of dignity and worth is a fundamental principle of

     juvenile justice. This principle reflects the fundamental

     human right enshrined in Article 1 of the Universal

     Declaration of Human Rights that all human beings are

     born free and equal in dignity and rights. Respect of

     dignity includes not being humiliated, personal identity,

     boundaries and space being respected, not being

     labelled and stigmatized, being offered information and

     choices and not being blamed for their acts.

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015         44

           (b) The juvenile's or child's right to dignity and

   worth has to be respected and protected throughout the

   entire process of dealing with the child from the first

   contact       with      law     enforcement agencies   to   the

   implementation of all measures for dealing with the

   child.

                   Xx              xx

           V. Principle of family responsibility:

           (a) The primary responsibility of bringing up

   children, providing care, support and protection shall be

   with the biological parents. However, in exceptional

   situations, this responsibility may be bestowed on willing

   adoptive or foster parents.

           (b) All decision making for the child should involve

   the family of origin unless it is not in the best interest of

   the child to do so.

           (c) The family-biological, adoptive or foster (in that

   order), must be held responsible and provide necessary

   care, support and protection to the juvenile or child

   under their care and custody under the Act, unless the

   best interest measures of mandates dictate otherwise.

                           xx           xx

           XIII. Principle of repatriation and restoration:

           (a) Every juvenile or child or juvenile in conflict with

   law has the right to be re-united with his family and

   restored back to the same socio-economic and cultural

   status that such juvenile or child enjoyed before coming

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       45

     within the purview of the Act or becoming vulnerable to

     any form of neglect, abuse or exploitation.

             (b) Any juvenile or child, who has lost contact with

     his family, shall be eligible for protection under the Act

     and shall be repatriated and restored, at the earliest, to

     his family, unless such repatriation and restoration is

     likely to be against the best interest of the juvenile or the

     child."



     40. Environment and setting where the child grows plays the

most important role in the Fundamental Principles which are

recognised under the Act and the Rules. Family is the best place

where child's natural growth is possible. The above has also been

recognised by the Apex Court in Sheela Barse v. Secretary,

Children Aid Society [(1987)3 SCC 50]. Paragraphs 5, 7 and 11

of the judgment are relevant, which reads as under:

             "5.Children are the citizens of the future era. On

     the proper bringing up of children and giving them the

     proper training to turn out to be good citizens depends

     the future of the country. In recent years. this position

     has been well realised. In 1959, the Declaration of all

     the rights of the child adopted by the General

     Assembly of the United Nations and in Art. 24 of the

     International Covenant on Civil and Political Rights.

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        46

   1966,      the      importance     of  the child  has been

   appropriately recognised. India as a party to these

   International           Charters     having  rectified the

   Declarations, it is an obligation of the Government of

   India as also the State machinery to implement the

   same in the proper way. The Children Act, 1948 has

   made elaborate provisions to cover this and if these

   provisions are properly translated into action and the

   authorities created under the Act become cognizant of

   their role, duties and obligation in the performance of

   the statutory mechanism created under the Act and

   they are properly motivated to meet the situations

   that arise in handling the problems, the situation

   would certainly be very much eased.

                           xx         xx       xx

           7. Gerontocracy in silence manner indicated that

   like a young plant a child takes roots in the

   environment where it is placed. Howsoever good the

   breed be if the sapling is placed on a wrong setting or

   an unwarranted place there would not be the desired

   growth. Same is the situation with the humane child....

                           xx         xx       xx

           11. In recent years, children and their problems

   have been receiving attention both of the Government

   as also of the society but we must say that the

   problems are of such enormous magnitude that all

  WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015          47

     that has been done till now is not sufficient. If there be

     no proper growth of children of today, the future of the

     country will be dark. It is the obligation of every

     generation to bring up children who will be citizens of

     tomorrow in a proper way. Today's children will be the

     leaders of tomorrow who will hold the country's banner

     high and maintain the prestige of the Nation, If a child

     goes wrong for want of proper attention, training and

     guidance, it will indeed be a deficiency of the society

     and of the Government of the day. A problem child is

     indeed        a negative          factor. Every society must,

     therefore, devote full attention to ensure that children

     are properly cared for and brought up in a proper

     atmosphere where they could receive adequate

     training, education and guidance in order that they

     may be able to have their rightful place in the society

     when they grow up."

     41. In this context it is relevant to note the definition of

'home' given in Section 2(d) of the 1960 Act. Section 2(d) of the

1960 Act defines 'home' in the following words:

     "2(d) 'home' means an institution, whether called on

     orphanage, a home for neglected women or children, a

     widows' home, or by any other name, maintained or

     intended to be maintained for the reception, care,

     protection and welfare of women or children;"

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        48

      42. The very definition of 'home' as above indicates that

home is an institution maintained or intended to be maintained

for the reception, care, protection and welfare of women or

children. Thus, home under the 1960 Act whether called an

orphanage, a home for neglected women or children is the home

for care and protection. More so, whether a child, who was

produced before the Child Welfare Committee, is the child in need

of care and protection within the meaning of Section 2(d) of the

2000 Act is the matter for consideration and decision by the Child

Welfare Committee, which is the statutory authority to take

decision in relation to child in need of care and protection. Section

31 of the Act is relevant, which is quoted as below:

             "31.      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.

             (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

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       49

       proceedings under this Act relating to children in need

      of care and protection."

      43. Under Section 31, the Child Welfare Committee has been

given final authority to dispose of cases for the care and

protection of the children.

      44. The comprehensive legislation, i.e., 2000 Act has been

enacted to address all aspects of child care and protection. The

2000 Act has to be given overriding effect with regard to child

care and protection. The children intercepted on the dates as

noted above were produced before the Child Welfare Committee,

which committee proceeded to take measures for care and

protection of the children. Hence, the submission of the

orphanages that those children are not covered by the definition

of Section 2(d) cannot be accepted.

      45. A Single Bench judgment of this Court reported in Jose

Maveli v. State of Kerala (2007(2) KLT 761) has been cited by

learned counsel appearing for the Khadeejathul Kubra Islamic

Complex. It is submitted that poverty of parents alone is not

sufficient to hold a child in need of care and protection. In the

above case five minor children were kept in an institution,

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       50

namely, Jena Seva Sishubhavan. The third respondent claiming to

be father of the minor children filed an application before the

Magistrate, who was acting as the Child Welfare Committee for

handing over the children to the father. The said application was

considered by the Magistrate and an order was passed directing

the children institution Jena Seva Sishubhavan to release the

children to the second respondent (father). The said order was

challenged by the Director of the Sishubhavan by means of

Criminal Revision. In the above context, the learned Single Judge

had occasion to consider Section 2(d) of the 2000 Act. It is useful

to quote paragraphs 44, 45, 46 and 51 of the judgment, which

read as under:

             "44. A close reading of section 2(d) of the Act

     shows that a child who is having a parent or

     guardian cannot, strictly speaking, be said to be a

     "child in need of care and protection", unless such

     parent/guardian             is    possessed for     such

     disqualifications as are specifically laid down in sub-

     clauses (ii), (iv) or

     (v) of section 2(d) of the Act. Sub-clauses (ii), (iv)

     and (v) specifically refer to a child who has a parent

     or guardian.

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        51

           45. As per sub-clause (iv), if the child has a

   parent, only if such parent is unfit or incapacitated

   to exercise control over the child that his child

   becomes a "child in need of care and protection".

   (May be, the parent is mentally deranged or so).

   Under sub-clause (v), if the child has parents, they

   must have abandoned him/her so that such child

   can be treated as a "child in need of care and

   protection". If it is a case of a 'missing and run away

   child', the child can be treated as a "child in need of

   care and protection" under section 2(d)(v), only if

   the parent cannot be found, even after a reasonable

   enquiry.

           46. It is also clear from section 2(d)(v) that a

   child can be stated to be a "child in need of care

   and protection", if no one is willing to take care of

   him/her, though he has no parent. The corollary that

   follows from the above clause is that even in cases

   where the child is parentless, he does not become a

   "child in need of care and protection", unless no

   one is willing to take care of him/her.

                          xx          xx


           51. It is also relevant to note that it is not laid

   down in any of the sub-clauses in section 2(d) that if

   a "parent" is without home, settled place or abode or

   means, a child born to such parent will be a "child in

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       52

     need of care and protection". On the other hand, if

     the parent is unfit or is having any of the

     disqualifications as stated in the relevant sub-clauses,

     his/her child can be stated to be a "child in need of

     care and protection". But, in none of such sub-

     clauses,       financial      incapacity, poverty and the

     consequential lack of means of a parent, absence of a

     house, settled place or abode have been made

     disqualifications of a parent, so as to bring his/her

     child within the sweep of section 2(d) of the Act."

In the above case this Court held that mere financial

incapacity/poverty or lack of means of the parents is not

disqualification of a parent, so as to bring his/her child within the

sweep of section 2(d) of the Act. The said observations were

made by this Court in a case where parent was asking for release

of the children from the Jena Seva Sishubhavan and he contended

that he is ready to take care of all requirement of the child. In the

said case also the importance of parental care was duly

highlighted by the learned Single Judge. The following was laid

down in paragraph 58 of the judgment:

             "58. The parental care and warmth would provide

     to them, enough strength to stride through the path of

     thorny poverty. A child would learn a lot in his life from

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       53

     the bed-time fairy tales, under the parental care,

     whether he or she be, in a hut or a palace. The `sweet-

     and-sour' family environment may cool down, the heat

     of his thirst and hunger. Though poverty may taste

     bitter to him, the parental care and affection may be

     sweet and soothing. Nothing can substitute it. The silky

     bed or velvet clothes, sweet bread or honey, a golden

     bowl or silver spoon at an Institution, may not replace

     the warmth of a family environment."



The above was not a case where parents have sent their child to

orphanage for education as is claimed by the different

orphanages in the present case.

     46. As noted above, petitioners had filed       an application

being I.A. No.7403 of 2015 in W.P(C) No.14259 of 2014 seeking a

direction with regard to 16 children brought from Arunachal

Pradesh who were produced before the Jena Seva Sishubhavan,

Aluva on 20.05.2015. By the same I.A., petitioners have also

prayed for a direction to initiate an enquiry by the Central Bureau

of Investigation into the large scale trafficking of children from

outside to State of Kerala in the guise of education. The Child

Welfare Committee has submitted a report on the basis of the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       54

direction issued by this Court. In the report dated 17.06.2015, it

is stated that the 16 children arrived at the Jena Seva

Sishubhavan, Aluva on 20.05.2015 have been produced before

the Child Welfare Committee, Ernakulam on 25.05.2015.            The

Child Welfare Committee conducted its          proceeding and asked

the Shishubhavan to submit relevant documents. Two Members

of the Child Welfare Committee also met the children at the Jena

Seva Sishubhavan, Aluva. The Jena Seva Sishubhavan, Aluva has

been impleaded as one of the respondents.         A counter affidavit

has been filed by the Chairman of the Jena Seva Sishubhavan,

Aluva. In the counter affidavit it is stated that 16 children from

Arunachal Pradesh between the age of           7 and 11 years were

brought by Probir Kumar Chakma on 20.05.2015 before the Jena

Seva Sishubhavan. It is stated that earlier on 23.05.2014 the

said Probir Kumar Chakma came to Jena Seva Sishubhavan with 8

children hailing from Arunachal Pradesh. Jena Seva Sishubhavan

submitted that         documents pertaining to 16 children have been

produced before the Child Welfare Committee, Ernakulam.         Jena

Seva Sishubhavan claims registration under the 1960 Act for

boarding 200 boys and 200 girls. Jenaseva Shishubhavan has

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        55

also been registered under the 2000 Act by registration dated

23.05.2014.        Jena Seva Sishubhavan has also produced a letter

dated    14.05.2015 alleged to be issued by the Child Welfare

Committee, Lohit District, Arunachal Pradesh.

     47. Shri B.S. Swathi Kumar, learned counsel appearing for

the   Jenaseva         Shishubhavan         submitted   that     Jenaseva

Shishubhavan is an institution fighting against the child abuse

and child labour which is looking after the           need of the children

for their care and protection for the last 15 years. It is submitted

that although Jena Seva Sishubhavan endorses the view that the

best place to brought up a child is with the parents provided the

parents are willing and capable of maintaining their child in child

friendly atmosphere.               It is further submitted that the Child

Welfare Committee without proper enquiry are releasing children

to person who claims to be parent without proper verification.          In

the report submitted by the               Child Welfare Committee dated

17.06.2015 the following was stated:

          "The Child Welfare committee, Ernakulam District has

    decided to send the 16 children back to Arunachal Pradesh

    for the following reasons:

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        56

        1.       7 o the 16 children have specially stated that

 they want to return home.

        2.       There is a clear violation of the rights of the

 children as none of them is being allowed to speak with

 their parents.

        3.       One of the persons responsible for bringing the

 children (Probir Kumar Chakma) has been reported by the

 children to be using intoxicants.         The CWC, Ernakulam

 District was subsequently by the Secretary of Jenaseva

 Shishubhavan, Aluva that Probir Kumar Chakma                was

 admitted to Kusumagiri Mental Health Centre, Kakkanad,

 Ernakulam.

        4.       Bringing the children from their home district is

 in violation of Principles V, XII and XIII of the Fundamental

 Principles of Juvenile Justice and Protection of Children as

 laid down in the Juvenile Justice (Care and Protection of

 Children) Act, 2000.

 In addition to the 16 children brought to Ernakulam, a total

 of 27 children from Arunachal Pradesh are in three different

 institutions in Ernakulam District. While interacting with the

 16 children, it was found that none of the other 27 children

 has gone home or seen their parents after coming to Kerala.

 This is in violation of the rights of the children. Hence the

 CWC, Ernakulam District is of the opinion that these children

 should also be repatriated and continue their schooling in

 their home districts in Arunachal Pradesh.

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015          57

    Dated this: June 17, 2015

          Sd/-                    Sd/-                    Sd/-
    Padmaja Nair              Sr.Pranidha            Janaki Sankaran
    Chairperson               Member                 Member"



     48. Learned counsel Shri Subash Chand                     for the   Child

Welfare Committee submitted that report dated 17.06.2015 has

already been sent to the Jena Seva Sishubhavan. It is submitted

that 16 children from Arunachal Pradesh have been brought to the

State of Kerala without following the procedure prescribed by the

Regulations,        Government Orders and Circulars issued by the

Orphanage Control Board.               It is relevant to note the letter dated

14.05.2015 which has been produced by Probir Kumar Chakma

before the Jena Seva Sishubhavan filed as R11(h) which reads as

follows:

     "To
     The Chairman,
     Child Welfare Committee
     Ernakulam District
     Kerala.

     Date 14.05.2015


     Sub:Authorization

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        58

   Sir,

   Whereas one Probir Kumar Chakma, a resident of

   Diyun Bazar, Changlang District, Arunachal Pradesh

   has approached the Child Welfare committee, Tezu,

   Lohit District, Arunachal Pradesh to allow him to take

   16 (sixteen) numbers of children from Chakma Village

   No.1 & No.2 from Chogkham circle under Namsai

   District, Arunachal Pradesh to Jenaseva Shishubhavan,

   Ernakulam District, Kerala for education.

   The names of children are as follows:


   1.      Shri Tinku Chakma, age 10 years,

           S/o.Shri Anjeef Chakma,

           Village Chakma Village No.1

           PO/PS Chongkham Distt, Namsai,

           Arunachal Pradesh.

   2.      ...................

   16.     Shri Mangal Jyoti Chakma, aged 10 years

           s/o.Shri Santhosh Chakma

           Village Chakma Villae No.2,

           PO/PS Changkham, Distt. Namsai,

           Arunachal Pradesh.

   This is to authorize and request you to receive the

   children in your charge and to keep them in the

   aforesaid institution.

   Given my hand and seal of Child Welfare Committee

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       59

      This 14th May, 2015


      (Shantanu Kri)
      Chairperson,
      Child Welfare Committee
      Lohit District,
      Arunachal Pradesh - 792 001."


A perusal of the above letter would indicate that        the Child

Welfare Committee, Lohit District, Arunachal Pradesh has not

taken any decision of itself for sending children to the State of

Kerala. A reading of the letter would indicate that on a request

made by        Probir Kumar Chakma that he be allowed to take 16

children, the said letter has been issued. The learned counsel for

the Child Welfare Committee submitted that the letter does not

even appear to be genuine since no reference or any other

details are given.

     49. Be that as it may, the letter cannot be treated to be a

decision of the Child Welfare Committee, Lohit District, Arunachal

Pradesh to send 16 children to the State Government.

Regulations framed under the 1960 Act by the State Government

has been amended on 22.06.2013. Regulation 9 provides that

without there being prior approval of the Board no children from

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       60

outside the State shall be              admitted and that too    on the

recommendation of the State Government concerned. Thus the

bringing of 16 children to Aluva on           20.5.2015 cannot be said to

be in accordance with law and the Child Welfare Committee has

taken decision to send back the children to Arunachal Pradesh.

We direct the State Government/District Administration           to take

all necessary steps including providing necessary facilities for

sending back the 16 children to their respective home District at

the earliest.      As far as submission of        Shri Swathi Kumar    is

concerned, Jena Seva Sishubhavan is taking proper care of all

inmates and giving facility of education, etc. We have no doubt

about the said statement.              However, Jena Seva Sishubhavan

being only children Home, it has to act in           accordance with the

decision of the Child Welfare Committee which is entrusted

under the Act the authority to take care and protection for the

child in need.       In the present case the Child Welfare Committee

after looking to the records             Jena Seva Sishubhavan   took a

decision to rehabilitate the children in which we do not find any

error.

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       61

     50. In view of the above, our answer to Issues I and II are as

follows:

     I. The children who were intercepted on 25th and 26th

May, 2014 at Palakkad Railway Station and the children

who were intercepted on 20th May, 2015 at Ernakulam

Junction Railway Station as well as 16 children who were

produced before the Child Welfare Committee, Ernakulam

(29+16 children) are children in need of care and

protection within the meaning of Section 2(d) of the 2000

Act.

     II. In view of the definition given under Section 2(d)

of the 1960 Act, a child, who is maintained or intended to

be maintained in an orphanage, is the child in need of

care and protection. However, final authority to take a

decision whether the child is in need of care and

protection within the meaning of Section 2(d) of the 2000

Act lies with the Child Welfare Committee as provided

under Section 31 of the 2000 Act.

     51. ISSUE Nos. III, IV and V being inter connected are

being taken together. As noted above, under the 1960 Act, the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       62

provision for recognition of homes is contained in Sections 13 and

14. The 1960 Act is a legislation primarily directed for supervision

and control of orphanages and other charitable homes. As noted

above, there was an Act, namely, the Women's and Children's

Institutions (Licensing) Act, 1956, which also provided for

licensing under Sections 3 and 4. The 1956 Act was repealed by

the 1960 Act. Section 5 of the 1960 Act provided for Board of

Control, its reconstitution etc. The functions of the Board were

provided under Sections 7 and 8, which are to the following effect:

             "7. Functions of the Board. - (1) It shall be the

      duty of the Board to supervise and control generally all

      matters relating to the management of homes in

      accordance with the provisions of this Act; and

      exercise such other powers and perform such other

      functions as may be prescribed by or under this Act.

             (2) In the performance of its functions under this

      Act, the Board shall be bound by such directions as the

      State Government may give to it.

             8. Power of the Board to give directions to

      manager of a recognised home.- Subject to the

      directions, if any, given under sub-section (2) of

      section 7, the Board may, from time to time, give such

      general or special directions to the manager of a

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        63

     recognised home as it thinks fit for the efficient

     management of the home and the manager shall

     comply with such directions."

      52. The scheme of the Act indicates that principal object and

aim   of     the      Act     was      supervision and control of the

orphanages/homes. The Act did not contain any other measures

pertaining to any separate provision for child care and protection.

      53. The 2000 Act was enacted to give effect international

treaties and is referable to Entry 14 List 1. Thus, the primary

purpose and objects of both the Acts are different.

      54. A submission was raised by Advocate Sri.Devan

Ramachandran that after the enactment of 1986 Act, the 1960

Act shall stand repealed. He submits that the 1960 Act has been

repealed by the 1986 Act, which is no longer operative. He has

also placed reliance on a judgment of the Delhi High Court in

support of his submission, being Chhatravas, Chandra Arya

Vidya Mandir v. The Director, Deptt of Women and Child

Dev. & Anr. (W.P(C).No.9590 of 2009) decided on 3.3.2014. In

the said judgment the Delhi High Court has taken a view that the

1986 Act repealed the Children Act, 1960. The Children Act, 1960

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       64

was an Act, which was applicable to Union Territories. The Delhi

High Court was not considering the 1960 Act, hence, the said

judgment is not an authority to hold that the 1960 Act stands

repealed.

     55. Moreover, as noted above, the 1960 Act was enacted for

supervision and control of the orphanages and charitable homes,

whereas the 2000 Act was enacted for consolidating and

amending the law relating to juveniles in conflict with law and

children in need of care and protection, by providing for proper

care, protection and treatment by catering to their development

needs and by adopting a child-friendly approach in furtherance of

the Central Government ratifying the international convention

adopted in the General Assembly of the United Nations on the

Rights of the Child on 20th November, 1989. However, the

provisions of the 2000 Act shall be applicable in context of a child,

who is in need of care and protection. Care and protection of a

child being a paramount object of the 2000 Act, all measures

provided in the Act are applicable to any home/children home

housing a child. The charitable homes/orphanages in the event

they house a child, they are required to obtain registration under

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       65

the 2000 Act. The purpose and object of obtaining registration is

distinct and different from that of obtaining recognition under

Sections 13 and 14 of the 1960 Act. Section 34(3) of the 2000 Act

gives an overriding effect to anything contained in any other law

for the time being. The said provision mandates all institutions

whether the State Government run or those run by voluntary

organisations for children in need of care and protection shall,

within a period of six months from the date of commencement of

the Juvenile Justice (Care and Protection of Children) Amendment

Act, 2006, be registered under the Act. Section 34(3) has been

inserted by Act 33 of 2006. The insertion of the provision has

salient purpose and object. Unless the institutions, which are

required to take care and protection of children registered under

the 2000 Act, the benefit of beneficial legislation to children shall

not be available. The words "without prejudice to anything

contained in any other law for the time being in force" further

clarify that the registration under Section 34(3) is without

prejudice to any other law, i.e., without prejudice to any

registration under the 1960 Act for the purpose of the present

case. Thus, even though orphanages/charitable homes are

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       66

registered under the 1960 Act, they require registration under the

2000 Act, since they are receiving the children who need care and

protection. The petitioner in W.P(C).No.15844 of 2015 has

produced the certificate of recognition where the certificate has

been granted for "orphanage for boys with maximum number of

inmates as 25". The child housed in an orphanage is a child, who

is in need of care and protection, holding that no registration is

required under the 2000 Act by an orphanage or charitable home

registered under the 1960 Act is denying benefit of beneficial

legislation, i.e., 2000 Act to large number of children, who are

housed in orphanages and other charitable homes, which shall not

be in accordance with the object and purpose of the 2000 Act.

The 2000 Act has been enacted in recognition of universal right of

child and the benefit of each and every child, who is in need of

care and protection is to be given. It is also relevant to note that

the Delhi High Court in Chhatravas's case (supra) has also held

that all voluntary organisations are required to be registered

under Section 34(3) of the 2000 Act. It is useful to quote

paragraphs 47, 48 and 49 of the judgment, which read as under:

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        67

           "47. Wheres the Licensing Act, 1956 was a

   general law relating to children and women, the JJ Act,

   1986 and the JJ Act, 2000 are special legislations

   pertaining to two categories of children and thus even

   if it be assumed that the Licensing Act, 1956

   continues to hold lthe field, pertaining to the two

   categories of children referred to in paragraph 44

   above, the JJ Act, 2000 would prevail. The legislative

   intent could not be made more clear other than the

   use of the words "Without prejudice to anything

   contained in any other law for the time being in force'

   in the opening sentence of sub-Section 3 of Section

   34 of the JJ Act, 2000.

           48. Needless to state the mandate of Section 34

   (3) of the JJ Act, 2000 is to obtain registration of

   institutions run by voluntary organizations for children

   in need of care and protection under the Act. The

   issue of recognition has got nothing to do with Section

   34(3) of the JJ Act, 2000 for the same pertains to Rule

   2(m) read with Rule 70 of JJ Rules, 2007 and

   depending         upon        the  nature of the Home, a

   recognition from the State Government under Section

   8 for an Observation Home, under Section 9 for a

   Special Home, under sub-Section 2 of Section 34 for a

   Children's Home and under Section 37 for a Shelter

   Home."

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       68

             49. The institutions established by the petitioner

     are for orphaned girls and boys as also for boys and

     girls who cannot be maintained by their parents. We

     see no escape from the fact that these children have

     been surrendered for care and upbringing to the

     institutions established by the petitioner and thus if

     not as per sub-clause (iv) of para (d) of Section 2 of

     the JJ Act, 2000, as per sub-clause (v) of para (d) of

     Section 2 of the said Act these children would be a

     child in need of care and protection requiring

     registration under sub-Section 3 of Section 34 apart

     from a recognition from a State Government."

     56.     The      Apex       Court  in Re:Exploi. of Childrenin

Orphanages in State of T.N v. Union of India and others

(2014 KHC 2275) has issued a direction on 7.2.2013, where it was

observed      that     children       homes run by   non Government

organisations are also required to be registered under the 2000

Act. A status report was directed to be filed by all the States

indicating as to whether any of such institutions are unregistered.

The directions were issued in paragraphs 26 and 27, which are

quoted as below:

 WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015       69

            "26. We are informed that in all States, children

     homes have been set up by the State as also by the

     non - Government Organizations. We are also

     informed that some individuals have also been

     permitted to open such homes. Therefore, it is

     necessary that each States conducts a detailed survey

     with regard to Government/NGO/privately run and

     controlled children homes and find out as to how

     many Children's homes/Fit Institution/Observation

     homes/Shelter homes/Special homes are working in

     their respective States.

            27. All these institutions are required to be

     registered under various provisions of the Juvenile

     Justice (Care and Protection of Children) Act, 2000. Let

     a status report be submitted by all the States

     indicating as to whether any of such institutions are

     unregistered. In case of unregistered institutions, the

     status report should also indicate as to what

     protective measures have been taken by the State

     Government or the local authority within which such

     institutions are located, to prevent any abuse of the

     inmates of these institutions. This indeed is a very

     serious concern. We, therefore, direct all the States to

     take utmost care in preparation of the status report."

    57. Learned             Government Pleader Shri T.T. Muhamood

contended that        Orphanages and Children   Homes    which are

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       70

registered under the 1960 Act need not be registered under the

2000 Act has also been approved by the judgment of this Court

in  Balachandran v. State of Kerala (2012 [2] KLT 161). The

learned Single Judge while deciding              a Criminal Miscellaneous

Case has observed that proceedings under Section 34 (3) of the

Juvenalie Justice (Care and Protection of Children) Act, 2000 can

be initiated against            individual Organization and not against

petitioner in its capacity as Secretary.          In the above case   the

Child Welfare Committee issued a notice               to the petitioner to

register its        Organization under Section 34(3) of the Act.

Petitioner filed a detailed             explanation.   The Child Welfare

Committee, Wayand District addressed to the Government to

stop disbursement of the grant until they register under Section

34(3) of the said Act. Challenging the recommendations, Writ

Petition has been filed which was pending at the time when the

learned Single Judge decided the Criminal Miscellaneous Case.

Arrest warrant was issued to the 2nd respondent               which was

challenged in the Criminal Miscellaneous Case. Counter affidavit

was also filed by the Child Welfare Committee where it was

contended that Child Welfare Committee has power to issue

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       71

warrant.      Learned Single Judge in the above context made the

following observations in paragraphs 7 and 9:

             "7.     When the revision petition came up for

     hearing, the counsel for revision petition produced

     Annexure - A(4) Government Order dated 11/02/2010,

     (k. D. (Fw.Fkv) \w. 12/2010 / km t' h) which says that

     the institutions registered under Orphanages and

     other Charitable Homes (Supervision and Control) Act

     need not again register under S.34(3) of Juvenile

     Justices Act. In the light of Annexure - A4 Government

     Order an orphanage registered under the Orphanages

     and other Charitable Homes (Supervision and Control)

     Act need not again register under S.34(3) of Juvenile

     Justices (Care and Protection of Children) Act, 2000 as

     amended by Act 33 of 2006. That being so, the

     warrant issued by the second respondent is clearly

     illegal and is liable to be set aside.

             9.      That apart WP (C) No. 28307/2008(T) filed

     by the petitioner has been allowed by this Court on

     September 25, 2009 (as evidenced by a copy of the

     order produced) finding that if proceedings are to be

     initiated for compliance of S.34(3) of Juvenile Justices

     Act such proceedings shall be initiated against

     individual organisations and not against petitioner in

     his capacity as the Secretary. That being so, the entire

     proceedings initiated against the petitioner by the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        72

     second respondent under S.34(3) of the Act will not

     stand and is liable to be set aside. Consequently the

     warrant issued against him also to be cancelled."

     58. The above judgment does not help the                 Government

Pleader in the present case for two reasons. Firstly, there is no

such proposition laid down in the case that an Institution

registered under the 1960 Act need not be registered under the

2000 Act.        The learned Single Judge has only referred to and

relied on the Government Order dated 11.2.2000. There was no

challenge to the said Government Order in the said proceeding,

hence     the said decision            clearly is distinguishable and not

applicable to the facts of the present case.

     59. One of the issues to be considered is as to whether the

State Government have any jurisdiction to grant exemption to the

orphanages from registration under the 2000 Act. The State in its

counter affidavit has referred to the Government order dated

11.2.2010 by which it granted exemption to the orphanage from

registration under the 2000 Act. It is useful to refer to the

Government Order dated 11.2.2010, which was to the following

effect:

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        73

           "The Government has issued order containing

   guidelines for registration of all establishments for the

   children in need of care and protection, either run

   directly by the government or by the voluntary

   organisations, under section 19 of The Juvenile Justice

   (Care and Protection of Children) Amendment Act,

   2006, before the District Social Welfare Officer

   concerned until amendment is effected to the Kerala

   Juvenile Justice (Care and Protection of Children) Rules,

   2003.

           2. A clarification has been sought by the

   Chairman, Orphanage Control Board vide reference

   no.2 that whether the establishments recognized by

   the Orphanage Control Board are required to be

   registered again before the District Social Welfare

   Officer of the department of Social Welfare.

           3. In the circumstances, clarification hereby

   given that only the establishments fostering the

   children in need of care and protection under section

   19 of the Juvenile Justice (Care and Protection of

   Children) Amendment Act, 2006 are required to be

   registered under this Act. The establishments which

   protect other children need not be registered again

   under the Orphanage and other Charitable Home

   (Supervision and Control) Act 1968."

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       74

     60.     In     W.P(C).No.23875       of 2014   the Kerala  State

Commission for Protection of Child Rights has filed a counter

affidavit, wherein it was stated that it has already passed an

order dated 29.4.2014 recommending the Government to revoke

the Government order dated 11.2.2010. It is useful to quote

paragraphs 6 and 7 of the affidavit, which are to the following

effect:

             "(6) That it is respectfully submitted that the 3rd

     respondent          came       to  know that many  of  the

     orphanages registered under the Orphanages and

     Other Charitable Homes (Supervision and Control) Act,

     1960 were not registered under the Juvenile Justice

     (Care and Protection of Children) Act, 2000. It was also

     noticed         that      G.O.(MS)   No.12/2010/SWD  dated

     11.2.2010 issued by the government                 granting

     exemption to institutions which are already registered

     under the Orphanages and Other Charitable Homes

     (Supervision and Control) Act from further registration

     under the JJ Act is in contravention of section 34(3) of

     the JJ Act.

             (7) That the third respondent had considered the

     issue in detail and as per Order dated 29.4.2014 in

     CRMP No.646/2014/LA2/KeSCPCR, had made the

     following recommendations to the Government:

 WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015       75

     (i) To take steps to revoke G.O.(MS) No.12/2010/SWD

            dated 12.2.2010 with immediate effect;

     (ii) To recommend to the Government that in

            accordance with the constitutional provisions,

            the UNCRC, Sec.34(3) of the JJ (Amendment) Act

            2006, rule 71 of the JJ Rules 2007 and ruling of

            various High Courts, all child care institutions in

            Kerala, including all orphanages registered under

            the Orphanages and Other Charitable Homes

            (Supervision and Control) Act be registered

            under sec.34(3) of the JJ Act."

     61. A perusal of the 1960 Act indicates that the State

Government has power under Section 28 to grant exemption to

orphanages and homes from the operation of all or any of the

provisions of the 1960 Act. Section 28(1) is quoted as below:

            "28. Power of State Government to exempt

     homes.- (1) If, after consultation with the Board, the

     State Government is satisfied that the circumstances

     in relation to any class of homes or any home are

     such that it is necessary or expedient so to do, it may,

     by notification in the Official Gazette, and for reasons

     to be specified therein, exempt, subject to such

     conditions, restrictions or limitations, if any, as it may

     think fit to impose, such class of homes or home, as

     the case may be, from the operation of all or any of

   WP(C) No. 14259, 14604, 23875 of 2014
      and W.P.(C) No. 15844 of 2015       76

       the provisions of this Act or of any rule or regulation

       made thereunder."

       62. From the foregoing discussions, it is clear that even

though the            children institutions/homes and orphanages are

registered under the 1960 Act, they are required to be registered

under the 2000 Act. They are housing children in orphanages

itself indicates that those children are children, who are in need of

care and protection. The State Government has no jurisdiction to

grant exemption for registration under the 2000 Act to any

organisation/homes which is receiving children for care and

protection.

       63. In view of the aforesaid discussions, our answer to Issues

III, IV and V are as follows:

               III. The institutions/orphanages, which are

        registered          under       the  1960 Act also  need

        compulsory registration under the 2000 Act to

        house a child, who is in need of care and

        protection within the meaning of Section 2(d) of

        the 2000 Act.

               IV. Section 34(3) of the 2000 Act mandates

        obtaining                   registration     by        all

        institutions/orphanages                run  by    private

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       77

      organisations, which are housing children, who

      need care and protection.

              V. The State Government has no jurisdiction

      to grant any exemption to institutions registered

      under the 1960 Act from further registration

      under the 2000 Act.

Issue Nos.VI & VII

     64. The issue is as to whether Orphanages and Institutions

registered under the 1960 Act can admit child belonging to

outside State of Kerala without prior approval of the Orphanage

Control Board and without there being recommendation of the

concerned State Government.               In the counter affidavit filed by

the State,      stand has been clearly taken that Institutions can

admit outside State child only on the recommendation of the

concerned State Government after prior approval of Orphanage

Control Board.            In the counter affidavit dated 17.07.2014 by

the 2nd respondent this has been specifically                 pleaded in

paragraph 16. State has also in its counter affidavit relied and

referred to in paragraph 4 that children from outside the State

can be admitted only with the prior permission of the Orphanage

Control Board. The following has been stated in paragraph 4:

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       78

             "....The State Government have constituted the

     Board of Control for the supervision and control of the

     Institutions come under the Act and prescribed

     criteria for admission vide G.O(P) No.52/3/SJD dated

     22.06.2013.             Copy of the Government Order is

     produced herewith an the same may be marked as

     Exhibit R2(a). Accordingly, the admission within the

     State shall be done based on the Orphan or non-

     orphan certificate issued by the Village Officer and in

     the case of other State children the permission is

     based on the concurrence of the concerned State

     Government..."

Exhibit R2(a) is the copy of the amendment published in Gazette

dated 28.06.2013 in which regulations for the working of the

Board of Control          constituted under the Orphanage and other

Charitable Homes (Supervision and Control) Act, 1960 which was

issued by        Government Order dated 18.05.1963 has been

amended.         Amendments made by clause 1 of the amendment

dated 22.06.2013 is as follows:

             "I.     In the Regulations for the working of the

     Board of Control constituted under the Orphanages

     and other Charitable Homes (Supervision and Control)

     Act, 1960.-

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        79

           I(i)    in the regulation 9, after the first sentence

   the following clauses shall be inserted, namely:-

           "All admissions to a recognized Home shall be

   based on a Destitution Certificate for an orphan in

   Form I or a Destitution Certificate for a non-orphan in

   Form II from the Village Officer of the Village in which

   the person permanently resides:

           Provided         that     without such    Destitution

   Certificate persons from outside the State shall be

   admitted to any of the recognized Homes with the

   prior approval of the Board.

           A recognized Home desiring to provide care and

   protection to persons from outside the State, shall

   submit application for the purpose to the Board along

   with the recommendation letter from the State

   Government concerned with the list and identification

   of the persons.

           If such persons are admitted, the recognized

   Homes should bear the entire expenditure for their

   maintenance           and no fund will be provided by the

   State Government.

           Recognized Homes in the State having persons

   from outside the State shall comply with and

   complete the above said procedure within six months

   of this order."

 WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015       80

The State having clearly come with the case that              child from

outside the State can be admitted in the Orphanage or Children

Home only         with the prior permission of the Orphanage Control

Board and with the             recommendations of the concerned State

Government and           such provisions have     been inserted in the

Regulation it is clear that no Orphanages or Children Homes or

any other Institution can admit any child from outside the State

without fulfilling the above two conditions.         It is clear that the

above prohibition is with regard to every child who has not

completed       18 years and           who  is received by a       Home

maintained or intended to be maintained for the reception,

protection, care and welfare of the children.

     65. Issue No.VI is answered in the following manner.

            Orphanages/Children              Homes/Institutions

     registered under the 1960 Act cannot admit

     child from outside the               State   without prior

     approval of the Orphanage Control Board and

     without there being recommendation of the

     State Government concerned.

   WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        81

      66. ISSUE No.VII. Now we come to W.P(C) No.15844 of

2015 filed by Khadeejathul Kubra Islamic Complex seeking

release of 29 children who has been taken custody by the Child

Welfare Committee, Ernakulam on 20.05.2015. Petitioners have

filed certain details of 29 children out of which according to the

petitioner      20 are old inmates of the Complex and 9 are new

children.     It is submitted that         all the 29 children have been

provided admission and 20 children have taken                 admission in

different Institutions St.Marys U.P. School, Maradu and Raman

Master Memorial L.P. School, Nettor.              Petitioner's case is that

children were admitted in Home                on application received from

parents who were willing to send their children to the Home. It is

submitted that applications signed by the parents of the children,

birth certificates and copy of ID proof have been placed before

the Child Welfare Committee.                Child Welfare committee has

filed a counter affidavit in the Writ Petition.           As noted above,

above 29 children were brought to the Ernakulam junction on

20.05.2015 who were intercepted by the Railway Police.                Child

Welfare authorities were informed and               Member of the Child

Welfare Committee also appeared. The Child Welfare Committee

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        82

having satisfied that there are no valid documents the aforesaid

children be housed in                 K.P.Aboobacker   Moulavi Memorial

Orphanage, Edappally.              A report by the District Child Welfare

Officer dated 22.05.2015 has also been produced which

mentioned that on 21.5.2015, the District Child Protection Officer

inspected      the Complex and submitted the report.            The Child

Welfare Committee has also stated that registration of                 the

Complex under the 1960 Act has expired on 01.05.2015.

Learned counsel for the Child Welfare Committee submitted that

the Complex should also get itself registered under the 2000 Act.

Without registration under the 2000 Act it cannot house any child

who is in need of care and protection.            In so far as registration

part    is concerned, learned counsel for the petitioner,             Shri

Krishnanunni submitted that amendment has been made in the

Regulation dated 06.04.2015. Regulation framed by the State

Government for the working of the orphanages under the 1960

Act where several facilities are required to be now provided

Orphanage/Home. He further submitted that under Regulation

15 one year time has been allowed for Orphanage and home to

comply with the facilities. It is submitted that there is one year

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        83

further time for the Complex to get it registered or renew the

registration. Paragraph 15 is quoted as follows:

             "15. Time             limits for implementation.- All

      existing institutions shall be given a period of one

      year for providing all the facilities mentioned in this

      regulations and new recognition shall be given only to

      those institutions             who satisfy the requirements

      stipulated in this regulation."

The above Regulation would clearly indicate that one year time

has been allowed to existing institutions for providing all the

facilities mentioned in              the Regulation. Regulation 15 pre-

supposes the existing institutions which is already registered.

Regulation 15 cannot be read in the manner as contended by

learned counsel for the petitioner.              Regulation 15 does not

extend the registration of petitioner for one year.           Thus as on

date    the Complex has not              even registration under the 1960

Act.     As observed above, every Orphanages/Children Homes

registered under the 1960 Act has to get itself registered under

Section 34(3) of the 2000 Act in event it houses any child which

needs care and protection. Petitioner's home having maintained

or intended to be maintained for the reception, care, protection

 WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015      84

and welfare of the children as per Section 2(d) of the 1960 Act it

has to obtain registration under the 2000 Act.   Thus petitioner as

on date      is not entitled to house any child. Further the Child

Welfare Committee has taken custody of 29 children who are

housed in different Children Home, Child Welfare Committee is

the authority competent to take decision regarding care and

protection of a child. We thus are of the view that with regard to

29 children a decision is to be taken by the Child Welfare

Committee which is the final authority to take decision regarding

care and protection of a child. Thus the prayer of the petitioner to

release the 29 children cannot be accepted. In view of the above

our answer to the Issue No.VII is:

             Petitioners in W.P(C) No.15284 of 2014 are

     not entitled for the mandamus directing the

     respondents to release 29 children taken into

     custody by the second respondent. The said

     prayer is declined. We, however, observe that

     the final decision in the matter be taken by the

     Child Welfare Committee.

     67. Now we come to Issue No.VIII. Issue No.VIII pertains

to enquiry by Central Bureau of Investigation.   As noted above

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015         85

with regard to the incidents on 24.05.2014 and 25.05.2014 at

Palakkad Railway Station Crime Nos.48 and 49 have already

been registered under Section 370 of the Indian Penal Code which

has now been entrusted for investigation to the Crime Branch of

the State. In W.P(C) No.14604 of 2014 a specific prayer has been

made for issuing a direction to entrust investigation of Crime

No.48    of 2014 of the Palakkad Railway Station to the CBI.           As

noted above          application has also        been filed seeking for a

direction to conduct CBI enquiry              in W.P(C) No.14259 of 2014.

Learned counsel appearing for the Orphanages' Association as

well as the petitioner in W.P(C) No.15884 of 2015 submitted that

present is not a case in which a CBI enquiry be directed.            It is

submitted that no offence has been committed                      by the

Orphanage/Homes registered under the 1960 Act so as to direct

CBI enquiry.        It is further      submitted that CBI enquiry can be

directed only when the court is prima facie satisfied that such

investigation is needed.               Reliance has been placed on the

judgment of the Apex Court in ([2010] 3 SCC 571). The following

was laid down by the Apex Court in paragraphs 69, 70 and 71:

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        86

           "69. In the final analysis, our answer to the

   question referred is that a direction by the High Court,

   in exercise of its jurisdiction under Art.226 of the

   Constitution, to the CBI to investigate a cognizable

   offence alleged to have been committed within the

   territory of a State without the consent of that State

   will neither impinge upon the federal structure of the

   Constitution nor violate the doctrine of separation of

   power and shall be valid in law. Being the protectors of

   civil liberties of the citizens, this Court and the High

   Courts have not only the power and jurisdiction but

   also an obligation to protect the fundamental rights,

   guaranteed by Part III in general and under Art.21 of

   the Constitution in particular, zealously and vigilantly.

           70.     Before parting with the case, we deem it

   necessary to emphasise that despite wide powers

   conferred by Art.32 and Art.226 of the Constitution,

   while passing any order, the Courts must bear in

   mind certain self - imposed limitations on the

   exercise of these Constitutional powers. The very

   plenitude of the power under the said Articles

   requires great caution in its exercise. In so far as the

   question of issuing a direction to the CBI to conduct

   investigation in a case is concerned, although no

   inflexible guidelines can be laid down to decide

   whether or not such power should be exercised but

   time and again it has been reiterated that such an

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015         87

   order is not to be passed as a matter of routine or

   merely        because         a   party has  levelled some

   allegations          against      the   local police.  This

   extraordinary power must be exercised sparingly,

   cautiously and in exceptional situations where it

   becomes necessary to provide credibility and instil

   confidence in investigations or where the incident

   may have national and international ramifications or

   where such an order may be necessary for doing

   complete justice and enforcing the fundamental

   rights. Otherwise the CBI would be flooded with a

   large number of cases and with limited resources,

   may find it difficult to properly investigate even

   serious cases and in the process lose its credibility

   and purpose with unsatisfactory investigations.

           71.     In Secretary, Minor Irrigation & Rural

   Engineering Services, U.P. and Others v. Sahngoo

   Ram Arya and Another, 2002 KHC 1280, this Court

   had said that an order directing an enquiry by the CBI

   should be passed only when the High Court, after

   considering the material on record, comes to a

   conclusion that such material does disclose a prima

   facie case calling for an investigation by the CBI or

   any other similar agency. We respectfully concur with

   these observations."

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       88

     68. Another judgment relied                    is Secretary, Minor

Irrigation And Rural Engineering Services, U.P. v. Sahngoo

Ram Arya (2002) 5 SCC 521 wherein paragraph 5 the Apex

Court laid down the following:

             "5.While none can dispute the power of the High Court

     under Art.226 to direct an inquiry by the CBI, the said power can be

     exercised only in cases where there is sufficient material to come to

     a prima facie conclusion that there is a need for such inquiry. It is

     not sufficient to have such material in the pleadings. On the

     contrary, there is a need for the High Court on consideration of

     such pleadings to come to the conclusion that the material before it

     is sufficient to direct such an inquiry by the CBI. This is a

     requirement which is clearly deducible from the judgment of this

     Court in the case of Common Cause (supra). This Court in the said

     judgment at Para.174 of the report has held thus:

             "174. The other direction, namely, the direction to CBI

      to investigate "any other offence" is wholly erroneous and

      cannot be sustained. Obviously, direction for investigation

      can be given only if an offence is, prima facie, found to have

      been committed or a person's involvement is prima facie

      established, but a direction to CBI to investigate whether any

      person has committed an offence or not cannot be legally

      given. Such a direction would be contrary to the concept and

      philosophy of "LIFE" and "LIBERTY" guaranteed to a person

      under Art.21 of the Constitution. This direction is in complete

      negation of various decisions of this Court in which the

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        89

      concept of "LIFE" has been explained in a manner which has

      infused "LIFE" into the letters of Art.21."

There cannot be any dispute to the proposition laid down by the

Apex Court in the above mentioned cases. Question whether the CBI

enquiry be directed in a particular case is the question which need

to be considered in the facts and circumstances of each case.         In

the present case from the facts brought on record it is clear that

children in large number are being brought to the State of Kerala.

Cases of child trafficking has already been registered by the Railway

Police of Palakkad.            The     Crime Branch has also carried on

investigation and as has been stated in the counter affidavit filed by

the State     dated 18.6.2014.         It has been stated that   a large

number of        persons were arrested by the Crime Branch.           In

paragraphs 18, 19, 20, 21 and 22 of the counter affidavit, details

of the investigation and name of arrested persons were noted.

From the aforesaid facts it is clear that agents from outside States

including Jharkhand, West Bengal, Bihar have been made accused

in the cases who are bringing children to the State of Kerala.

Orphanages are also              receiving the children from the agents

which also indicates their co-operation in the matter.

 WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015        90

     69. Child trafficking is a menace which has to be combated

by all concerned. Child Trafficking has been defined in Section

370 of the IPC which is to the following effect:

            "370. Trafficking of person.- (1) whoever, for

     the purpose of                exploitation , (a) recruits (b)

     transports,         (c ) harbours, (d) transfers, or (e)

     receives, a person or persons, by- first. -       using

     threats, or

     secondly.- using force, or any other form of coercion,

     or thirdly.- by abduction, or

     fourthly.- by practising fraud, or deception, or

     fifthly.-               by abuse of power, or

     sixthly.-       by inducement, including the giving or

     receiving of payments or benefits, in order to achieve

     the consent of any person having control over the

     person recruited, transported, harboured, transferred

     or received,

     commits the offence of trafficking.

            Explanation I.- The expression "exploitation"

     shall include any act of physical exploitation or any

     form of sexual exploitation, slavery or practices

     similar to slavery, servitude, or the forced removal of

     organs.

            Explanation 2.- The consent           of the victim is
     immaterial in determination of the offence of
     trafficking.

WP(C) No. 14259, 14604, 23875 of 2014
 and W.P.(C) No. 15844 of 2015        91

           (2)     Whoever commits the offence of trafficking

   shall be punished with rigorous imprisonment for a

   term which shall not be less than seven years, but

   which may extend to ten years, and shall also be

   liable to fine.

           (3)     Where the offence involves the trafficking

   of more than one person, it shall be punishable with

   rigorous imprisonment for a term which shall not be

   less than ten years but which may extend to

   imprisonment for life, and shall also be liable to fine.

           (4)     Where the offence involves the trafficking

   of a minor, it shall be punishable with rigorous

   imprisonment for a term which shall not be less than

   ten years, but which may extend to imprisonment for

   life, and shall also be liable to fine.

           (5)     Where the offence involves the trafficking

   of more than one minor, it shall be punishable with

   rigour imprisonment for a term which shall not be less

   than fourteen years, but which may extend to

   imprisonment for life, and shall also be liable to fine.

           (6)     If a person is convicted of the offence of

   trafficking of minor or more than one occasion, then

   such person shall be punished with imprisonment for

   life, which shall mean imprisonment for the reminder

   of that person's natural life, and shall also be liable to

   fine.

 WP(C) No. 14259, 14604, 23875 of 2014
   and W.P.(C) No. 15844 of 2015        92

            (7)      When a public servant or a police Officer is

     involved in the trafficking of any person then, such

     public servant or police officer shall be punished with

     imprisonment for life, which shall mean imprisonment

     for the reminder of that person's natural life, and shall

     be liable to fine."

     70. Learned Amicus Curiae has referred to the protocol to

prevent, suppress and                and punish trafficking in persons,

especially women and children, supplementing the United

Nations. The protocol defines trafficking in the following words:

             "(a) "Trafficking in persons" shall mean the

     recruitment, transportation, transfer harbouring or

     receipt of persons, by means of the threat or use of

     force or other forms of coercion,          of abduction, of

     fraud, of deception, of the abuse of power or of a

     position of vulnerability or of the giving or receiving of

     payments or benefits to achieve the consent of a

     person having control over another person, for the

     purpose of exploitation. Exploitation shall include, at

     the minimum, the exploitation of the prostitution of

     others or other forms of sexual exploitation, forced

     labour or services, slavery or practices similar to

     slavery, servitude or the removal of organs;

            (b)     The consent of a victim of trafficking in

     persons to the intended exploitation set forth in sub

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       93

      paragraph a) of this article shall be irrelevant where

      any of the means set forth in the subparagraph (a)

      have been used;

             (c ) The recruitment, transportation, transfer,

      harbouring or receipt of a child for the purpose of

      exploitation        shall     be  considered "trafficking in

      persons" even if this does not involve any of the

      means set forth in subparagraph (a) of this article;

             (d)     "Child" shall mean any persons under

      eighteen years of age."

Repeated incidents of bringing of large number of children to the

State and that too in violation of the            Rules and Regulations

clearly indicate the necessity of proper investigation in the matter

and punishment to the guilty. As noted above, bringing children

to the State      of Kerala is not confined to one State but spread

over to several other States from which certain accused have

already been arrested and investigation is in progress.

      71. A counter affidavit has been filed on behalf of the CBI.

In the counter affidavit filed by the CBI it has been stated that

Anti Human Trafficking Unit of CBI has been established             on

28.02.2012 to develop specialisation in the area of illegal human

trafficking especially trafficking of children and women. The

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015        94

counter affidavit also referred to various successful investigation

dealing with child trafficking relating to the the State of West

Bengal, Bihar, Delhi and               and neighbouring country.  In the

counter affidavit it has been clearly stated that inter State

investigation is involved in the cases registered in the State of

Kerala and considering the large scale investigation spread over

in the four States the State be directed to provide adequate

manpower        to carry out the investigation.       The Following was

pleaded in paragraphs 8, 9, 10 and 11:

             "8.     That, the Hon'ble High Court of Calcutta

     had entrusted CBI with an enquiry into disappearance

     of 47 girls.         Some of these girls were from Napal.

     After sustained enquiry, CBI was able to trace and

     examine 24 of these girls. A detailed report in this

     regard was submitted in the Hon'ble High Court,

     Calcutta.

             9.      That in a case entrusted by the Hon'ble

     High Court, Delhi, two minor girls from West Bengal

     were recovered and after investigation a chargesheet

     was filed against four persons.               After successful

     prosecution of this              case, the accused have been

     sentenced to undergo imprisonment upto 10 years by

     the Trial Court.

  WP(C) No. 14259, 14604, 23875 of 2014
    and W.P.(C) No. 15844 of 2015       95

             10.     That the instant Writ Petitions referred to

     cases in which almost 600 children have been

     allegedly trafficked to Kerala from the State of West

     Bengal, Bihar &            Jharkhand. Considering the Inter-

     State investigation involved in these cases, if the

     Hon'ble Court so desires, CBI is willing to take up the

     investigation if the cases referred in the aforesaid

     cases referred in the aforesaid Writ Petitions.

             11.     That in the event of these cases being

     transferred to CBI, considering the large scale

     investigation spread over four States and possibly

     internationally, it is humbly prayed that the Hon'ble

     Court may direct the concerned States to provide

     adequate manpower, logistics and other support to

     carry out this investigation."

In the facts of the present case, the materials brought on record

and the investigation so far carried out, investigation being

spread over in different States, we are of the view that

investigation by CBI is required in the present case. The CBI has

already expressed willingness to carry out the investigation of

the large scale child trafficking as noted above. We are of the

view that investigation of various crimes registered in the State of

Kerala regarding child trafficking including Crime Nos.48 and 49



of 2014 registered by the Palakkad Railway Police be entrusted to

the CBI. The State of Kerala shall provide all help including the

logistic and       manpower          to carry on the investigation.  The

Director General of Police, Kerala shall ensure that details of such

cases including Crime Nos.48 and 49 of the Palakkad Railway

Station and cases involving child trafficking be entrusted to the

CBI.

      72. In view of what has been stated above,            we dispose of

Writ Petition Nos.14259 of 2014, 14604 of 2014 and 23875 of

2014 with the following direction:

             (i)     The         respective       Child   Welfare

      Committee shall take appropriate measures in

      accordance with the 2000 Act with regard to

      children           who          are    still   housed      in

      Orphanages/Children Homes out of 578 children

      who were intercepted on 24.5.2014 and

      25.5.2014 at Palakkad Railway Station and who

      came from Bihar, Jharkand and West Bengal.

             2.      I.A. No.7403 of 2015            filed by the

      petitioner in W.P(C) No.14259 of 2014 with



   regard to 16 children brought from Arunachal

   Pradesh is allowed.                Let the Child Welfare

   Committee,              Ernakulam      take   appropriate

   measures as per its decision already brought on

   record.         I.A. No.7016         of 2015 filed by the

   petitioner in W.P(C) no.14259 of 2014                 with

   regard to 29 children who were intercepted on

   20.05.2015 at the Ernakulam Junction Railway

   Station is also allowed.               The Child Welfare

   Committee, Ernakulam is directed to take

   appropriate measures in accordance with the

   2000 Act with regard to the above 29 children.

           3.      All      Orphanages/Homes       registered

   under the 1960 Act shall get registration under

   the 2000 Act which are intended                  or to be

   intended for care, protection and welfare of the

   children below 18 years.

           4.      There shall be no exemption to the

   institutions and Homes Registered under the

   1960 Act from registration under the 2000 Act


   and the Government Order dated 11.02.2010

   cannot be relied on for exemption from

   registration under the 2000 Act.

           5.      District Administration shall provide

   all assistance to                 respective Child Welfare

   Committees in each District to carry on proper

   inspection of all Orphanages/Child Homes for

   taking appropriate measures as per 2000 Act

   for children housed therein and it shall be open

   for respective Child Welfare Committees to take

   such measures under the 2000 Act as required.

           6.      No Orphanages/Child Homes shall

   receive children from outside the State except

   in accordance with the Regulations (Amended

   on 22.6.2003) framed by the State Government

   under Section 30(3) of the 1960 Act, i.e.,

   without prior approval of Orphanage Control

   Board and without the recommendation of the

   concerned State Government.



             7.      The Central Bureau of Investigation

      shall undertake investigation of Crime Nos.48

      and 49 of 2014 registered by the            Palakkad

      Railway Police under Section 370 IPC (now

      entrusted to the Crime Branch of the State)

      including other cases registered under Section

      370 IPC for child trafficking from outside the

      State.

             8.      W.P(C) No.15844 of 2015 is dismissed.

      73. Before we part, we record our deep appreciation for

Shri Devan Ramachandran for his valuable assistance as Amicus

Curiae in this group of Writ Petitions.

      Parties shall bear their costs.



                                             ASHOK BHUSHAN
                                              CHIEF JUSTICE



                                             A.M. SHAFFIQUE
                                                  JUDGE

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