Anuj And Another vs State Of U.P. And 2 Others
2022 Latest Caselaw 2470 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 25.04.2022
 
Delivered on 11.05.2022
 
Court No. - 47
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 287 of 2022
 

 
Petitioner :- Anuj And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Mukesh Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Deepak Verma,J.

Heard learned counsel for the petitioners and learned AGA for the State.

The petition seeks quashing of the first information report dated 17.01.2022 giving rise to Case Crime No.27 of 2022, under Sections 363 & 366 IPC, Police Station Mauderwaja, District Farrukhabad.

On a query by the Court regarding maintainability of the writ petition, since the corpus is under detention in pursuance to an order passed by the Child Welfare Committee under Section 27(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 dated 24.03.2022, learned counsel for the petitioners has relied upon a Division Bench decision of this Court in Habeas Corpus Writ Petition No. - 3914 of 2018, Kajal & Another vs. State of U.P. & Others to submit that in similar circumstances, a habeas corpus petition was allowed by this Court.

Upon a perusal of the judgment cited by learned counsel for the petitioners, we do not find any consideration, therein, regarding maintainability of a habeas corpus petition where detention of the corpus is in pursuance of a judicial order.

Annexure 9 to the instant writ petition is the order dated 24.03.2022 passed by the Child Welfare Committee, Farrukhabad. It records that the corpus was produced before the Committee, in pursuance of the order of the Chief Judicial Magistrate, Farrukhabad, dated 15.03.2022. The Committee, finding that as per the educational certificate, the age of the corpus was 16 years 10 months and therefore she was a minor, it opined that she was in need of protection and care. The Committee noticed that the corpus was frightened of her family members and was not prepared to stay with them.

Accordingly, she was sent to the children home i.e. the State Bal Grah (Balika), Kanpur Nagar, Kanpur.

Perusal of the afore-noted order of the Child Welfare Committee, indicates that it has been passed. Section 27(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act).

To deal with the issue of maintainability of this petition, it is necessary to examine the relevant Scheme of the provisions of the Act of 2015.

Section 27(1) of the Act provides for constitution of at least one Child Welfare Committees for each District. This is to be done by the State Government through notification in the Official Gazette.

Sub-section 2 to 7 of Section 27 provide for the manner of constitution of such Child Welfare Committees.

Sub-section 9 of Section 27 reads as follows:-

"(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class."

From the perusal of afore-cited prvision, it is clear that the Child Welfare Committee is conferred the powers of a Judicial Magistrate of First Class or a Metropolitan Magistrate as laid down in the Code of Criminal Procedure.

Section 29 (1) enumerates the powers of a Child Welfare Committee and authorizes it to dispose of cases pertaining to care, protection, treatment, development and rehabilitation of children in need of care and protection.

Sub-section 2 of Section 29 confers upon the Committee, overriding powers to deal exclusively with all proceedings under the Act, pertaining to children in need of care and protection, notwithstanding any contained in any other law, in force.

Section 37 of the Act, empowers the Committee to declare that a child is in need of care and protection and also empowers it to order placement of a child in Children Home or fit facility for providing long term of temporary care etc., where restitution of the child to the family is not in best interest of the child.

Section 101 of the Act provides that a person aggrieved by an order made by the Child Welfare Committee may prefer an appeal to the Children Court namely the courts of session where a Children Court has not been constituted. It also provides that orders of the Child Welfare Committee relating to foster care, sponsorship After Care are appealable to the District magistrate.

Sub-section 5 of Section 101 provides that against an order of the Children's Court, a person aggrieved may file an appeal before the High Court, in accordance with the procedure specified in the Code of Criminal Procedure.

Section 102 provides the revisional power and lays down that the High Court may, at any time, call for the record of any proceedings in which or Committee or Children Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order.

Additionally, Section 104 of the Act empowers the Committee or the Board to amend at his own orders.

From the afore-noted provisions, it is clear that not only is an order passed by the Child Welfare Committee a judicial order, it is subject to appeal, revision and or modification by the Committee itself, in the facts and circumstances of a case.

The issue as to whether a habeas corpus would lie, where the detention of the corpus is in pursuance of a judicial order, has been considered by the Apex Court in a number of judgments, namely:-

1970(2)SCC-399, Sapmawia vs Deputy Commissioner, Aijal, AIR1974SC-510, Kanu Sanyal vs Dist. Magistrate, Darjeeling & Others, AIR1971-SC-2197, Janardan Reddy And Others vs The State Of Hyderabad And other and AIR1975SC-983, Ghetu Seik vs. State of West Bengal.

The ratio of the afore-noted decisions is that in case detention is not in accordance with law or the detention order has been passed contrary to the provision of law which enables its passing, the detention is per se illegal and a habeas corpus would lie. It would therefore appear that the detention order has to be de-hors the rules or law or should be patently illegal for a habeas corpus to be maintainable.

Examined in the context of the above legal position we find that the corpus has been detained in the children's home under an order of the Child Welfare Committee on the ground that she was found to be a minor. The corpus had, in her testimony before the Child Welfare Committee, expressed apprehension and fear about her custody being handed over to her relatives and patents. It is in this context that the corpus was ordered to be sent to the children's home at Kanpur Nagar. The order cannot be said to be contrary to the mandate of law. The legal provisions under the Act, for passing such an order had already enumerated in the preceding part of this judgment. The order passed by the Child Welfare Committee therefore, is one well within its power of pass and there appears no illegality therein. Moreover there is no challenge to the said order before the appropriate forum. Therefore also it is not possible to hold that the detention of the order is in any manner illegal. Even the petition is silent in this regard.

In view of the reasons given above and since the order passed by the Child Welfare Committee in exercise of powers under Section 27(9) of the Act is a judicial order, the detention of the corpus in the children's home at Kanpur Nagar, Kanpur is in pursuance of a judicial order the instant Habeas Corpus petition is not maintainable.

Moreover, since the issue of maintainability of a Habeas Corpus petition against an order of the detention in children's home passed by the Child Welfare Committee under Section 27(9) of the Act has not been dealt with in the judgment in Kajal (supra) cited by learned counsel for the petitioners, he is not entitled to any benefit under the cited judgment.

Accordingly and in view of the above, this Habeas Corpus petition fails and is dismissed as not maintainable.

Order Date :- 11.05.2022

Mayank