SUNIL KUMAR & ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) WE have just celebrated the year of the child at the National and International level. This was evidently to focus the attention of the world population on the need to devise and execute measures intended to promote the welfare of the children. Our Constitution obliges the State to provide opportunities and facilities to children to develop in a healthy manner and in conditions of freedom and dignity and also to ensure that childhood and youth are protected against exploitation and against moral and the material abandonment. Whatever may be the laws promulgated to secure the interests and welfare of children ultimately results depend on the spirit with which such legislations ate applied. The measure of consciousness of the people of the need for attention to problems concerning children will ultimately determine the success of any measures devised by the legislature of the country towards that end. The Children Act, 1969 was enacted by the Union Legislature as an Act to provide for the care, protection, maintenance welfare, training, education and rehabilitation of neglected or delinquent children in the Union territories. On the lines of the Central Act the Kerala Legislature enacted the Kerala Children Act 3 of 1973 with the same objective and it is the said Act which applies to Kerala. A child as defined means of boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years and when the term is used with reference to a child sent to a children's home or special school applies to that child during the whole period of the stay, notwithstanding that during the period of such stay the child may pass the above age limit. The Act contemplates the constitution of one or more children's courts for exercising the powers and discharging the duties conferred or imposed on such court under the Act. This is notwithstanding the provisions of the Code of Criminal Procedure. S. 27 of the Code of Criminal Procedure provides that any offence not punishable with death or imprisonment for life committed by any person who, at the date when he appears or is brought before the Court, is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or any Court specially empowered under the Children Act, 1960 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. The Children Act contemplates the constitution of three types of institutions, the Children's Home, Special Schools and Observation Homes. Children dealt with under the Act have been treated broadly under two categories, neglected children and delinquent children. The Act also deals with uncontrollable children, but the provisions in regard to these children are the same as those relating to neglected children. The Children's Home is intended to receive neglected children and that should provide the child not only with accommodation, maintenance and facilities for education but also with facilities for the development of his character and abilities and give him necessary training for protecting himself against moral dangers or exploitation. The Special Schools established under the Act are intended for the reception of delinquent children and that again must not only provide accommodation, maintenance and facilities for education but also with facilities for development of the child's character and abilities and give him necessary training for his reformation. Observation Homes are intended for temporary reception of children during the pendency of any inquiry regarding them under the Children Act. That too should provide the children not only with accommodation, maintenance and facilities for medical examination and treatment but also with facilities for useful occupation. Even a casual perusal of the scheme of the Act and the provisions relating to these Institutions would indicate that Special Schools are intended for delinquent children and Children's Homes are intended for neglected children. Observation Homes are intended for those children against whom inquiries are pending and this is therefore temporary in character. These three institutions are thus conceived for different purposes and naturally in functions also they would not be identical in character The inquiry by a children's court constituted under the Act in respect of neglected child is for determination whether the court is satisfied that the child is a neglected child and whether it is expedient to deal with him. On satisfaction of this the court may direct the child to be sent to the Children's Home for the period till be ceases to be a child. It can also reduce such period not exceeding 3 years as it deems fit. Instead of making an order directing the reception of child in the Children's Home it is open to the Children's Court to make an order placing the Child under the care of parent, guardian or other such person. In short, when a neglected child is produced before the Children's Court the court acts in the interests of neglected child and directs it to be sent to the Children's Home in order to provide it with proper habitation, and where its physical and moral health will be well looked after. This is a measure purely oriented towards the welfare of the child.

(2.) IN the case of delinquent children the Children's Court is to hold inquiry in accordance with S. 39 which lays down the procedure to be adopted. As far as may be, the procedure laid down in the Criminal Procedure Code for trial of summons cases has to be adopted. S. 20 of the Children Act deals with orders to be passed regarding delinquent children. Where the court is satisfied that a child has committed an offence it may adopt one of the following four courses: (a) allow the child to go home after advice or admonition (b) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person (c) make an order directing the child to be sent to a special school for the period until he ceases to be a child (d) order the child pay a fine if he is over fourteen years of age and earns money. It is not as if the only course the court should adopt is to send the child to the special school. Even where the direction is to send the child to the special school that does not amount to any conviction or imposition of sentence. This is an aspect often failed to be noticed and Children's Court and the authorities of the Children's Home and Special School treat the children as if they have been convicted and sentenced. In the scheme of the Children Act there is no scope for conviction of a child. There is no scope for sentencing the child. Sending to the special schools is with a view not to impose any term: of imprisonment on the child. When the child is in the special school it is not undergoing any such form of imprisonment. When the child is released from the school it does not and it should not carry any stigma of a conviction, for, there is none. The object with which the special school functions is only to impart education including moral education and also equipping the child to take over the responsibilities of an honest citizen as it grows up to become an adult. If authorities who are concerned with the children, whether they be on the judicial side or in the administrative side, do not imbibe the spirit of the legislation and are not inspired by the message of the Act, the Act is bound to do more harm to the children than good and be a curse more than a blessing to the child population in general.

(3.) WE have taken up 12 cases in Revision. Not that we are stopping with the 12 castes. In the light of our decision in these cases we are calling upon the authorities of the Balamandir to state the case of all the inmates and report to us so that we may pass appropriate orders. Therefore these 12 cases have been taken as illustrative.