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Writ Of Habeas Corpus Not Maintainable Against Judicial Order Of Magistrate/CWC Sending Minor Victim To Children Protection Homes: Allahabad HC

 

In a significant move, a Full Bench of Allahabad High Court comprising of Justice Siddhartha Varma, Justice Mahesh Chandra Tripathi and Justice Sanjay Yadav has just recently, rightly and remarkably in a latest judgment titled Km. Rachna and another vs State of UP and 4 others in Habeas Corpus Writ Petition No. 362 of 2020 delivered on March 8, 2021 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. The Full Bench was dealing with the reference in a habeas corpus petition seeking directions on Superintendent of Children Home (Girl) to release the minor girl namely Anchal aged 17 years who was allegedly illegally detained in the Children Home.

To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Mahesh Chandra Tripathi for himself, Justice Sanjay Yadav and Justice Siddhartha Varma sets the ball rolling wherein it is put forth that, “This writ petition has been listed before us in view of reference made by a Division Bench of this Court, considering the various provisions of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act) and the law laid down by various Courts. While referring the case to Hon’ble the Chief Justice to constitute a larger Bench, the Division Bench framed following issues to be decided by the larger Bench:-

“(1) 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?;

(2) 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/viewed as an illegal detention?; and

(3) 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 ?”

While stating the purpose of the writ petition, the Full Bench then states in para 4 that, “Present 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.”

While laying the background of the case, the Full Bench then discloses in para 5 that, “Brief matrix of the case, as is reflected from the record, is that the first information report was lodged by the mother of second petitioner on 16.2.2020, alleging that on 15.2.2020 her minor daughter Km. Anchal2 aged 17 years has been enticed by one Arjun S/o Rishipal. She also alleged that while leaving the house, the petitioner corpus had taken certain ornaments and cash amount. She also alleged that the father, mother and brother of Arjun had helped him in taking the petitioner corpus. The first information report was registered under Sections 363 and 366 of IPC against Arjun, his parents and relatives at Police Station Behat, District Saharanpur. The petitioner corpus was recovered on 04.3.2020 and on the same day, her statement under Section 161 Cr. P.C. was recorded, wherein she alleged that as quite often, she was beaten by her mother and out of frustration, without informing her parents, she had left home on 15.2.2020 and gone to the house of her friend namely Km. Rachna-first petitioner (sister of Arjun). She made a statement that she had gone of her own freewill and was living with her friend. However, she refused for medical examination. As per High School Certificate, her age has been found to be 17 years, whereas as per radiological examination conducted on 06.3.2020, her age was found to be about 20 years. 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.”

While continuing further in the same vein, the Full Bench then reveals in para 6 that, “Thereafter, the petitioner corpus was produced before the Chief Judicial Magistrate, Saharanpur on 13.3.2020. It was submitted by the police that as per High School Certificate, the age of the petitioner corpus is 17 years & 20 days and, therefore, suitable order be passed in regard to her custody. The mother of petitioner corpus also filed an application before the Chief Judicial Magistrate to the effect that the petitioner corpus is minor and, therefore, in the interest of justice, she may be sent to Balika Vikas Grih/Child Development Home. The finding was recorded by the Magistrate, determining the age of petitioner corpus to be 17 years. The Magistrate had directed for producing her before Bal Kalyan Samiti/Child Welfare Committee (the Committee) for issuance of further direction with regard to the custody of petitioner corpus. Pursuant to 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.”

As a corollary, the Bench then states in para 7 that, “Aggrieved with the said order, the present petition has been preferred for issuance of a writ of habeas corpus. While pressing the writ petition before the Division Bench, it has been urged that in her statement under Section 164 of Cr. P.C., the petitioner-corpus has categorically stated that on account of torture by her mother and brother, she left her house and is living happily with the first petitioner. 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.”

Be it noted, the Bench then while citing the relevant case law points in para 74 that, “In Janardan Reddy & Ors. vs. The State of Hyderabad & Ors. (supra) the Apex Court, while considering the maintainability of the writ petition, has observed that there is a basic difference between want of jurisdiction and illegal or irregular exercise of jurisdiction, Mere non-compliance of the rules of procedure cannot be made a ground for granting a writ under Article 32 of the Constitution. The defect, if any, can, according to the procedure established by law, be corrected only by a court of appeal or revision, and if the appellate court, which was competent to deal with the matter, has to consider the matter and pronounce its judgment, it cannot be reopened in a proceeding under Article 32 of the Constitution. The Apex Court further observed that the writ of habeas corpus could not be granted as a return that the person is in detention in execution of a sentence on indictment of a criminal charge, is sufficient answer to an application for such a writ.”

To put things in perspective, the Bench then enunciates in para 75 stating that, “Section 27 of the J.J. Act deals with Child Welfare Committee, wherein sub-section (8) provides that the District Magistrate shall conduct a quarterly review of the functioning of the Committee. Sub-section (9) also provides that the Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class. Section 29 provides the powers of Committee, which shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection. Sub-section (2) of Section 29 of the J.J. Act provides that 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 proceedings under this Act relating to children in need of care and protection. Section 30 of the J.J. Act deals with the functions and responsibilities of Committee, which include taking cognizance of and receiving the children produced before it. Most importantly Section 30 (ii) of the J.J. Act provides for conducting inquiry on all issues relating to and affecting the safety and wellbeing on the children under the Act. Sub-section (iii) of Section 30 of the J.J. Act provides for directing the Child Welfare Officers or Probation Officers or District Child Protection Unit or non-governmental organisations to conduct social investigation and submit a report before the Committee. Section 30 (vi) of the J.J. Act provides for ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child’s individual care plan and passing necessary directions to parents or guardians or fit persons or children’s homes or fit facility in this regard.”

It is also worth noting that it is then envisaged in para 76 that, “Full fledged mechanism is also provided in sub-section (viii) of Section 30 of J.J. Act for conducting an inspection visits per month of residential facilities for children in need of care and protection and recommending action for improvement in quality of services to the District Child Protection Unit and the State Government. Sub-section (1) of Section 37 of the J.J. Act, which deals with orders passed regarding a child in need of care and protection, 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 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, namely (a) declaration that a child is in need of care and protection; (b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker; (c) placement of the child in Children’s Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child; (d) placement of the child with fit person for long term or temporary care; (e) foster care orders under section 44; (f) sponsorship orders under section 45; (g) directions to persons or institutions or facilities in whose care the child is placed, regarding care, protection and rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention, psychiatric and psychological support including need-based counselling, occupational therapy or behaviour modification therapy, skill training, legal aid, educational services, and other developmental activities, as required, as well as follow-up and coordination with the District Child Protection Unit or State Government and other agencies and (h) declaration that the child is legally free for adoption under Section 38.”

More significantly, the Full Bench then observes in para 77 that, “Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest is paramount and before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in mind. The wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.”

Most significantly, the Full Bench then holds in para 78 that, “Thus, it is evident that a writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus.”

No less significant is what is then stated in para 79 that, “We accordingly come on our conclusions in respect of question nos.1, 2 and 3 for determination as follows:-

Question No.1 : “(1) 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?;

Answer : 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.

Question No.2: “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/viewed as an illegal detention?”

Answer: 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.

Question No.3 : “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 ?”

Answer: 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).”

Resultantly, the Full Bench then holds in para 80 that, “Thus, all the three issues referred for determination are answered, accordingly.”

No doubt, this brief, brilliant, blunt and balanced judgment makes the entire case clear before us. All questions posed are answered suitably. No more doubt remains to be cleared on it. It is rightly 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. No denying!

Sanjeev Sirohi

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