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
(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.
J.J.( Juvenile Justice) ACT
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).
Click here to download the original copy of the judgement