Child whose parent has filed case on his behalf not a ‘child in need of care’ under JJ Act: Punjab & Haryana High Court

The Punjab and Haryana High Court recently held that a child whose parent has filed court case on his behalf, does not fall within the scope of ‘child in need of care and protection’ under the Juvenile Justice (Care and Protection of Children) Act (JJ Act)..Justice Deepak Gupta made the observation while dismissing a petition filed by a 10-year-old through his mother for the registration of a First Information Report (FIR) against his uncles who had allegedly slapped him and grabbed his neck with an intention to asphyxiate him. The child’s mother had earlier moved an application before the Child Welfare Committee to recommend the matter to the Juvenile Justice Board for issuing directions to the police to register an FIR. However, no such action was allegedly taken. Therefore, a petition was filed before the High Court urging it to direct the Child Welfare Committee to recommend the filing of an FIR. .Looking into the provisions of JJ Act, the Court noted that a Child Welfare Committee has to perform its functions with regard to children who fall within the scope of ‘child in need of care and protection.’The Court explained that a ‘child in need of care and protection’ is mainly divided into two categories,“The first category comprises the child, who is not having any guardian or parents or any home or settled place of abode. In the second category falls that child, who though has a parent or a guardian, but either such a parent or guardian is incapable to take care of the child or incapacitated or such parent or guardian himself is subjecting the child to one or the other kind of atrocity," the Court explained. .The Court went on to point out that the petitioner-child did not fall under these categories. “Petitioner does not fall in any of the clauses as are mentioned in Section 2(14) of the JJ Act, as he is living with his mother, who is fighting for him,” the Court said.The petitioner’s counsel contended that such a definition has been held by the Supreme Court to be only illustrative and not exhaustive. However, Justice Gupta noted that the the top court had made such an observation in the case of Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors while dealing with cases of sexual abuse of children, especially in government institutions. .Meanwhile, the police told the Court that although there had been a heated exchange between the parties before the High Court, the allegations regarding beating the child (petitioner) were found to be false. The State counsel also said since offences under Section 323 (voluntarily causing hurt) and Section 506 (criminal intimidation) of Indian Penal Code ( are non-cognizable, an FIR cannot be registered without the permission of the Magistrate. .The Court noted that the Juvenile Justice Board could order the police to register an FIR for offences committed against any child in need of care and protection under the JJ Act.However, the Court clarified that the prerequisites for such action are that the Board should have received a written complaint from the Child Welfare Committee and that it should be a case involving a child in need of care and protection.In the present case, since the Court found that the child was not one in need of care and protection under the JJ Act, it held that the Child Welfare Committee could not have made any such recommendation to lodge an FIR..The Court also took into account the police reply that “except for exchange of hot words between the two parties, nothing else had happened and that the allegations regarding giving beatings to the petitioner, were found to be false. “The Court proceeded to dismiss the petition while adding that the petitioner was free to avail alternative remedies available to him, in accordance with law, including approaching the Jurisdictional Magistrate for orders to file an FIR..Advocate Abhishek Jindal represented the petitioner.Additional Advocate General Randhir Singh represented the State.Advocate Robin Gill appeared for advocate Ajaivir Singh who represented a private respondent..[Read Judgment]