Allahabad High Court
Amar Singh And Another vs State Of U.P. And 6 Others on 27 September, 2023
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:187483
Court No. - 81
Case :- HABEAS CORPUS WRIT PETITION No. - 409 of 2023
Petitioner :- Amar Singh And Another
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Ram Om Vikram Singh Chauhan,Shiv Om Vikram Singh Chauhan
Counsel for Respondent :- G.A.,Ajay Singh Sengar
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Nasir Hussain, Advocate holding brief of Sri R.O.V.S. Chauhan, learned counsel for the petitioners, Sri Ajay Singh Sengar, learned counsel for the private respondent nos.4 to 7 and Sri R.K. Srivastava, learned A.G.A. for the State.
2. At the outset, it is requested by the counsel for the petitioners as well as the counsel for the private respondents to direct for production of the corpus.
3. As per the contentions in the petition, a 15 year old daughter of Amar Singh (petitioner no.1 herein) was abducted by Shiv Singh (the respondent no.4 herein) from her father's natural guardianship and an F.I.R. being Case Crime No.713 of 2019, under sections- 363, 366 I.P.C. was lodged; thereafter section 376 I.P.C. and section- 3/4 POCSO Act were added on the basis of her statement and at that time, she was merely 13 year old. The accused is facing trial in the above case under sections- 363, 366, 376 I.P.C. and sections- 3/4 POCSO Act. But before her statement, before the trial court, could be recorded in the case based on Case Crime No.713 of 2019, she was kidnapped again, therefore, a second F.I.R. was lodged i.e. Case Crime No.293 of 2022, under sections- 363, 366, 504, 506 I.P.C. It is stated that the victim was found aged only 12 years in the medical examination. During the course of trial in the special case arising out of Case Crime No.713 of 2019, her statement as P.W.1 has been recorded and she has supported the prosecution case. It is further stated in the petition that before the aforesaid two F.I.R.s came to be lodged, yet another F.I.R. against the respondent no.4- Shiv Singh, as regards kidnapping of the corpus, in the year 2019, was lodged which is Case Crime No.623 of 2019, under sections- 354, 120B I.P.C. and sections- 7/8 POCSO Act, Police Station- Auraiya.
4. It is submitted on behalf of the private respondents as well as the State that the corpus/the victim of Case Crime No.293 of 2022 was produced by the Investigating Officer before the Special Judge (POCSO Act), Auraiya in the matter of handing over her custody. She was found minor. Her father gave an application for obtaining her custody, but she refused to go with her father. The court concerned, therefore, directed her to be produced before the Child Welfare Committee, Auraiya.
5. It is admitted by the learned counsel for the private respondents that presently the girl (the corpus herein) is lodged in a protection home at District- Kanpur Nagar, on the orders of the Child Welfare Committee concerned to keep her in safe and protected environment.
6. The High Court of Allahabad in judgment passed in Habeas Corpus Writ Petition No. 362 of 2020 (Km. Rachna and another vs. State of U.P. and 4 Others) delivered on 08.03.2021, has clearly held in para no.78 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.
8. Relevant Question No. 1 was framed, which is as below:-
"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?"
Answering to Question no. 1, the High Court held as below:-
"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."
8. The court further held that even an illegal or irregular exercise of jurisdiction by the Magistrate or by the C.W.C., cannot give cause of action for a writ of habeas corpus.
9. Admittedly, the corpus was produced before the court concerned and has been now lodged in a protection home on the orders of Child Welfare Committee, hence her detention cannot be treated as illegal from any angle. The petition is devoid of substance and is hereby dismissed.
Order Date :- 27.9.2023
Saif
