Kerala High Court
Xxxxxx vs State Of Kerala on 1 July, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
WP(CRL.) NO. 527 OF 2024
CRIME NO.158/2024 OF KONNI POLICE STATION, PATHANAMTHITTA
PETITIONER:
1 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
PHILIP T.VARGHESE
THOMAS T.VARGHESE
ACHU SUBHA ABRAHAM
V.T.LITHA
K.R.MONISHA
KALLYANI G. MENON
JIJO PAUL
ANJALI SUNIL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE CHILD WELFARE COMMITTEE
REPRESENTED BY ITS CHAIRMAN. OBSERVATION HOME
BUILDING VAYATHALA, PUTHUMON.P. O, KOZHENCHERY
(VIA), PATHANAMTHITTA ., PIN - 689641
3 THE STATION HOUSE OFFICER
KONNI POLICE STATION, KONNI. P.O.,
PATHANAMTHITTA,PIN - 689691
ADDL 4 THE PROJECT CO-ORDINATOR
VICTIM RIGHTS CENTRE (KELSA), HIGH COURT
W.P.(Crl) No.527 of 2024 2
OF KERALA, PIN- 682 031
(IS IMPLEADED AS ADDL.R4 AS PER ORDER
DATED 24/05/2024 IN WP(CRL.)527/2024(S).)
ADDL 5 THE STATION HOUSE OFFICER,
THRIKKAKARA POLICE STATION, PIN - 682 030.
(IS SUO MOTU IMPLEADED AS ADDL.R5 AS PER
ORDER DATED 06/06/2024 IN WP(CRL.)
527/2024.)
OTHER PRESENT:
SRI P M SHAMEER, GP
SMT. PARVATHY MENON, PROJECT DIRECTOR, VICTIMS RIGHT
CENTRE, KELSA, HIGH COURT OF KERALA
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 01.07.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(Crl) No.527 of 2024 3
JUDGMENT
Raja Vijayaraghavan, J.
The petitioner is the mother of Miss. X (name withheld for the
sake of privacy), a 17 year old girl. She has approached this Court
seeking issuance of a writ of habeas corpus directing the 2nd
respondent to produce Miss. X and to set her at liberty.
2. The petitioner states that initially a crime was registered
against her husband as Crime No.158 of 2024 at the Konni Police
Station for offences inter alia under Section 376(2)(f) and 376(2)(n) of
the IPC and Section 75 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 and various provisions of the Protection of Children
from Sexual Offences Act. She states that the petitioner's husband was
enlarged on bail by the Court of Session by Ext.P2 order dated
3.4.2024. According to her, the petitioner along with her minor
daughter had appeared before the learned Sessions Judge in the course
of proceedings and they had stated in unmistakable terms that the
allegations were false. She states that based on the said statement,
her husband was enlarged on bail. According to her, after the order
was passed by the learned Sessions Judge, her minor daughter was
illegally taken into custody by the 3rd respondent and she was
produced before the 2nd respondent on 5.4.2024. It is contended that
the Child Welfare Committee has not passed any orders in accordance
with law or in terms of Section 37 of the Act. She also contends that
her younger daughter who was only 13 years of age was also taken
into custody on 15.4.2024 but she was later released on 22.4.2024.
3. This Court, by order dated 23.5.2024, directed the learned
Government Pleader to produce before this Court the case records
leading to the divestment of the child from the custody of the
petitioner, the records forwarded by the 3rd respondent to the 2nd
respondent and the orders passed by the 2nd respondent and also the
relevant files. Direction was also issued to ensure the presence of the
child before us.
4. In terms of the directions issued by this Court, the child
was produced before us and we had occasion to interact with the child
and her mother. We perused the entire records as well. After
considering all relevant facts and the submissions advanced, the
following order was passed:
2. We have carefully reviewed the case records in Crime No.158 of
2024, the statement of facts submitted by the Inspector of Police,
Konni Police Station, and the counseling report submitted by the
Psychologist, Nirbhaya Entry Home, Konni. Our thorough
examination of these documents underscores the gravity and
sensitivity of this matter.
3. The Counselor's report discloses the trauma that the child was
subjected to. We have also gone through the social media
interactions of the child as well as the medical reports. We also
note that the child is experiencing significant distress due to her
stay at the Entry Home. The environment there appears to be
exacerbating her emotional turmoil, which warrants immediate
intervention.
4. The case records presented to us are profoundly disturbing.
While we refrain from delving into the intricate details of the
findings of the police at this stage, our primary concern is the
child's well-being and ongoing safety. We are resolute in our belief
that this situation necessitates urgent involvement from the Victim
Rights Centre (VRC) under KELSA. The role of the VRC will be
crucial in providing comprehensive emotional and legal support,
along with professional counseling, to help the child navigate this
traumatic period.
5. Given the immediate need for a supportive and secure
environment, we are of the opinion that the child should be
relocated to the One Stop Centre, Kakkanad (Sakhi) under the
Women and Child Department. This relocation will ensure that the
VRC has uninterrupted access to the child, allowing for continuous
monitoring and the provision of essential counseling services. The
One Stop Centre is equipped to offer a safe haven where the
child's emotional and psychological needs can be adequately
addressed.
6. The Registry is directed to take immediate steps to implead the
Project Coordinator, Victim Rights Centre (KELSA), High Court of
Kerala, as an additional respondent. This is to formalize the
involvement of the VRC and ensure that they can begin their work
without delay.
5. Later, when the case came up before this Court on 27.5.2024,
it was brought to the notice of this Court that the child had been shifted to
the One Stop Centre and she had undergone counselling sessions. She
was also provided with text books, materials etc. to prepare for the 'Save A
Year' Exam. A week's time was sought by the Project Coordinator to
furnish a report.
6. The matter was taken up on 4.6.2024 on which day, we were
informed that the mother as well as Miss. X has agreed to interact with the
Project Coordinator. We were also informed that the Psychiatrist attached
to the District Child Protection Unit will be having interaction with the child.
7. By order dated 6.6.2024, we granted protection to the child to
enable her to appear for the exams to be held at the G.H.S.S., Elimullum
Plackal. To enable her to appear for the exams, Miss. X was shifted to the
Entry Home, Konni. The police were also directed to ensure that a Woman
Police Constable in plain clothes accompanies the child to the Entry Home
as well as to the school for her protection.
8. We are informed now that the child has appeared for the
exams.
9. The matter was taken up today for further evaluation.
10. We have heard the learned counsel appearing for the
petitioner, the learned Government Pleader and Smt. Parvathy Menon, the
Coordinator.
11. Smt. Parvathy Menon highlighted the entire sequence of
events and stated before us that Miss. X will attain majority on 28.7.2024.
She suggested based on materials that there are two alternatives; the first
alternative is to re-institutionalize Miss. X to a Children's Home and once
she turns major, to admit her in an 'After Care Home' under the aegis of
the Women and Child Department and to provide her with constant
counselling and necessary psychological/psychiatric assessment and
intervention under the guidance of any Public Health Establishment. The
second alternative is to deinstitutionalize the detenu and permit her to join
her family under strict conditions that her father shall not contact her in
any manner till the proceedings in Crime No. 158/2024 registered at the
Konni Police Station comes to its logical conclusion. She also suggested
that the District Child Protection Officer be directed to monitor Miss. X and
ensure that she is not being subjected to any trauma or harm by any
individual.
12. Sri. Philip T. Varghese, the learned counsel submitted that the
child be permitted to join her mother and younger sister as
institutionalizing her is doing more damage to her emotional and mental
being than good. It is submitted that the mother of the children shall
ensure that her best interests are protected. He would also submit that
the mother has no objection in directing the District Child Protection
Officer to monitor the child and take necessary steps to ensure that her
interests are protected.
13. We have carefully considered the submissions advanced and
have perused the entire records.
14. We have narrated the sequence of events above.
15. We find that the mother as well as the child has been
counselled by a psychologist and she has also been seen by a Psychiatrist.
Miss. X is due to attain majority on 28.7.2024. The mother had stated
before us during interaction that she shall ensure that the child is not
subjected to any harm or trauma. Miss. X has also stated before us that
she wants to join her family and is not desirous of being institutionalized.
This is one of those cases wherein the father of the child is facing
prosecution under Section 376 of the IPC and various provisions of the
Protection of Children from Sexual Offences Act. We find that the
perpetrator has been granted bail by the Court of Session, Pathanamthitta.
While granting bail, the learned Sessions Judge has ordered that the
accused shall not threaten or harass the witnesses including the victim.
However, no condition has been imposed that the father shall not live in
the same house as the child. The investigating officer is the Station House
Officer, Konni Police Station, the 3rd respondent herein. The learned
Government Pleader pointed out that an application for cancellation of bail
was filed, but the same was dismissed by the Court of Session.
16. Having considered the entire facts, we are of the view that
further institutionalizing of the child is not warranted in the facts and
circumstances of the case. We dispose of the writ petition by issuing the
following directions:
a) Miss. X, the daughter of the petitioner herein, shall be released
from the One Stop Centre, Kakkanad (SAKHI) forthwith. The
petitioner shall be in custody of Miss. X and she shall ensure that
the child is not subjected to any physical or mental harm by any
person whatsoever, including the father of Miss. X. She shall also
ensure that Miss.X is able to pursue her studies and grow up as a
good citizen of the country.
b) The Station House Office, Konni Police Station shall ensure that
the accused complies with the conditions imposed by the learned
Sessions Judge. It would be open to the 3rd respondent to
approach the learned Sessions Judge and file appropriate
application for modification of condition to ensure that the child is
not forced to spend the time in the same building where the
accused also resides at least till the case is taken up and disposed
of finally.
c) The Child Protection Officer, Pathanamthitta, shall ensure that the
said authority meets the child once every two weeks for the next
six months and ensure that the child is not subjected to any sort
of harm by any person. If the situation warrants so, the officer
shall take necessary steps to provide necessary medical
assistance, psychological/psychiatric assessment, counselling and
treatment.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.M.MANOJ,
PS/1/7/24 JUDGE
APPENDIX OF WP(CRL.) 527/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE FIRST INFORMATION REPORT AND
FIRST INFORMATION STATEMENT IN CRIME NO. 158/2024
OF KONNI POLICE STATION DATED 21.02.2024.
EXT.P2 COPY OF ORDER PASSED BY THE ADDITIONAL SESSION
COURT 1 (SPECIAL COURT) PATHANAMTHITTA IN
CRL.M.P.NO. 2115/2024 DATED 3.4.2024.
EXT.P3 COPY OF PETITION FILED BY THE PETITIONER DATED
6.4.2024 BEFORE THE DISTRICT POLICE CHIEF,
PATHANAMTHITTA.
EXT.P4 COPY OF ACKNOWLEDGEMENT RECEIPT DATED 06.4.2024
ISSUED BY THE OFFICE OF THE DISTRICT POLICE CHIEF,
PATHANAMTHITTA.
EXT.P5 COPY OF WRITTEN REPRESENTATION DT.22.04.2024
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT REGARDING ELDER DAUGHTER
EXT.P6 COPY OF WRITTEN REPRESENTATION DT. 22.4.2024
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT REGARDING YOUNGER DAUGHTER
EXT.P7 COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE 2ND
RESPONDENT IN RESPECT OF EXT.P5.
EXT.P8 COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE 2ND
RESPONDENT IN RESPECT OF EXT.P6.
