Brief: Here Habeas Corpus Writ Petition has been filed by the petitioners seeking a writ of habeas corpus, commanding 4th respondent/Superintendent, Children Home (Girl), District Saharanpur to release corpus/2nd petitioner Km. Anchal, who has been illegally detained in the Children Home (Girl) District Saharanpur.
DATE OF JUDGEMENT: 08th March, 2021
JUDGES: Hon’ble Mr. Justice Sanjay Yadav, Hon’ble Mr. Justice Mahesh Chandra Tripathi, & Hon’ble Mr. Justice Siddhartha Varma.
PARTIES: Km. Rachna & Anr (Plaintiff)
State of U.P. and 4 others (Respondent)
SUBJECT: The Court pointed out that where the Magistrate's order mentions any provision of law under which he has passed such a direction, the order directing the girl to be kept in the protective home suffers from inherent lack of jurisdiction. Her custody in the protective home cannot, therefore, be held to be a legal custody. The Court said that the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a protective home and the question of giving the girl in the custody of the father also did not arise in that case as the father was himself instrumental in getting the girl sent to the protective home through the aid of the police
AN OVERVIEW
(i) An FIR was lodged by Anchal's mother alleging that her minor daughter left the house on 15th February 2020 with the help of one Arjun and his family.
(ii) When Anchal was recovered on 4th March 2020, her statement under sec. 161 CrPC was recorded wherein she alleged that she left the house out of frustra tration as she was beaten up by her mother and had then gone to the house of her friend, Arjun. It was also alleged that she did so out of her own free.
(iii) Her statement under Section 164 of Cr. P.C. was also recorded on 07.3.2020, wherein she also reiterated her previous statement made under Section 161 Cr.P.C.
(iv) The order passed by the Magistrate, the petitioner corpus was produced before the Committee and an order was passed by the Committee for keeping her in Children Home (Girl). Pursuant to the said order, the petitioner corpus is in Children Home (Girl) Saharanpur
(v) Aggrieved with the said order, the present petition has been preferred for issuance of a writ of habeas corpus. Once the custody of the petitioner corpus has been denied by her parents, the petitioner corpus wanted to go with the first petitioner and therefore, she cannot be sent to Children Home (Girl) against her wishes. Even if the petitioner corpus is minor, she cannot be kept in Children Home (Girl) against her wishes.
(vi) When she was produced before the CJM, Saharanpur on 13th March 2020, the police submitted that as per her High School Certificate, her age was 17 year and 20 days and therefore suitable order must be passed in regards to her custody. Subsequently, she was sent to Child development home by the learned CJM
(vii) The Division Bench therefore observed that if the detention in custody is as per judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction, the writ of habeas corpus would not be maintainable. However after observing that the position was contradicting as held in various judgments, the Division Bench referred the issues to be dealt by a larger bench.
IMPORTANT PROVISIONS
J.J.( Juvenile Justice) ACT
- Section 2(35)- means a child below the age of eighteen years
- Section 2(13)- mean a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence.
ISSUES
- Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?
- Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed or viewed as an illegal detention?
- Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/ Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act mentioned above.
ANALYSIS OF THE JUDGEMENT
- A Full Bench of Allahabad High Court on Monday held that an order passed by a Judicial Magistrate or Child Welfare Committee sending victim to women protection homes/child care homes cannot be challenged or set aside in a writ of habeas corpus. Subsequently, the Bench also observed that the detention of a corpus in such child care homes cannot be treated as an illegal detention.
- On the issue of elopement of minor girls and child marriages. The bench after hearing both the parties considered it necessary to make certain observations on the issues, apart from the main issues framed, dealing with cases of elopement of minor girls and their recovery after which they are sent to Children Homes.
- Observing that there was a rise in number of habeas corpus petitions being filed by the parents/guardians or alleged husband for production of their w ards or wife, who leave their parental houses in "Run away Marriages", the Bench opined that such parents go through agony whereas the couples are on the run with husband being accused of kidnapping and/or rape.
- Consequently, according to Bench, in such cases the Courts are required to ensure that the person whose production is sought is not illegally detained.
- The Court observed that the Act is a pro child legislation providing for all remedial measures of rehabilitation and care to a child in need of care and protection. However, the Court clarified that in cases where the corpus is sent to children homes arbitrarily, then the situation may be looked into in an appeal.
- The Court observed that Section. 37 of the Act clearly provides that the Committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by the Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders. Therefore, according to the Bench, the framers were conscious to take due care of child's wishes where the child is sufficiently mature to take a view.
- Consequently, the Court held that, the detention of the corpus cannot be said to be illegal and in case the petitioner is aggrieved by the order of the Child Welfare Committee, or the Magistrate, the petitioner is at liberty to take recourse of remedy of an appeal or revision provided under Sections 101 and 102 of the J.J. Act
- It was not a case of illegal detention but the petitioner corpus was in Children Home (Girl) Saharanpur by virtue of an order passed by Jurisdictional Magistrate. Even if there is lack of following due procedure under the Act and Rules by the Magistrate or by the Committee that can be agitated by the petitioner under the provisions of appeal/revision, as referred to above by taking out separate proceedings
CONCLUSION
In this case, no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women & Girls Protection Act or under some other law permitting her detention in such a home. No such situation contemplates under the J.J. Act and therefore, it cannot be said that the Magistrate or by the Committee does not have the power. It can be safely concluded that the writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.
If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.
An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention
Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).
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