The Allahabad High Court on Monday has said that if a minor is kept in a protection home or child home by the order of the magistrate or Child Welfare Committee, then it cannot be considered illegal detention.
This decision was given on Monday by the full bench of Justice Sanjay Yadav, Justice M.C. Tripathi and Justice Siddharth Verma while disposing of the statutory questions raised in the Habeas Corpus petition of Kumari Rachna and others.
The full bench said that the Juvenile Justice Board or Child Welfare Committee or magistrate will be able to issue appropriate orders in accordance with the provisions of Section 37 of the Juvenile Justice Act and the will of the minor as per the care and safety requirements of the minor.
The 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 Anchal, who has been illegally detained in the Children Home (Girl), District Saharanpur.
The FIR was lodged by the mother of the second petitioner on February 16, 2020, alleging that on February 15, 2020 her minor daughter Anchal, aged 17 years, has been enticed by one Arjun, S/o Rishipal.
She alleged that while leaving the house, the petitioner corpus had taken certain ornaments and the cash amount. She also alleged that the father, mother and brother of Arjun had helped him in taking the petitioner corpus.
The FIR 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 March 4, 2020 and on the same day, her statement under Section 161 Code of Criminal Procedure 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 February 15, 2020 and gone to the house of her friend namely Rachna, the first petitioner (sister of Arjun). She made a statement that she had gone of her own free will and was living with her friend.
She, however, refused to go for medical examination. As per High School Certificate, her age has been found to be 17 years, whereas per radiological examination conducted on March 6, 2020, her age was found to be about 20 years.
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 for issuance of further direction with regard to the custody of petitioner corpus.
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.
A.G.A. opposed the Petition by claiming that the petitioner corpus is minor as per her date of birth recorded in the High School certificate.
It has been urged that the age of the Petitioner Corpus is to be determined by applying the principles provided in Section 94 of the J.J. Act under which primacy is to be recorded to the date of birth entered in the educational certificate over the medical evidence.
It has also been objected by A.G.A. that the writ of habeas corpus is not maintainable as the order has been passed by the Committee pursuant to the order of the Magistrate and the judicial order, right or wrong cannot be questioned/assailed in Petition seeking Writ of Habeas Corpus.
The Bench has also proceeded to observe that apart from above mentioned cases, attention of this Court has also been drawn to many other cases, wherein issuance of a writ of habeas corpus has been held to be maintainable, whereas in some cases, the view of this Court is otherwise. Such situation impelled the Division Bench for formulating the aforementioned questions to be decided by the larger Bench.
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.