JJ Act | 'All CWC's Orders Excluding Decisions On 'Foster Care' & 'Sponsorship After Care' Are Appealable In Children's Court': Allahabad HC

The Allahabad High Court has observed that an appeal against all the orders passed by the Child Welfare Committee, except where the order has been passed relating to foster care or sponsorship of foster care, shall lie to the children's court as per Section 101 of the Juvenile Justice Act 2015 and not to the District Magistrate.

A bench of Justice Jyotsna Sharma observed thus while noting that in numerous instances, Children's Courts erroneously dismiss legal challenges to CWC orders by citing Section 27(10) of the JJ Act, 2015 (appeals to the DM) even when they are legally bound to entertain such appeals.

To further clarify the position of the law, the Court added that an appeal can lie to the District Magistrate concerning decisions by the Child Welfare Committee relating to foster care and sponsorship aftercare only and the appeal in respect of other orders passed by the Child Welfare Committee shall lie to the 'Children's Court' within 30 days from the date of order.

For context, Section 27(10) of the JJ Act, 2015 empowers the District Magistrate to entertain any grievance arising out of the functioning of a Child Welfare Committee. This section further empowers the affected child or anyone connected with the child, as the case may be, to file a complaint before the District Magistrate for the purpose that he may take suitable action as regards the complaints or the grievances which an affected person may have against the Committee.

However, as clarified by the HC, this provision doesn't deal with legal challenges to the orders passed by the CWC and an aggrieved person has to challenge the order passed by the Child Welfare Committee only under section 101 of the Juvenile Justice Act, 2015.

The case in brief

The occasion to clarify this provision of law arose before the Court while dealing with a revision plea filed by one Ram Bahadur Singh challenging an order passed by the CWC directing a 15-year-old victim girl to be kept in a 'woman protection home'.

The revisionist was also challenging an order passed by the appellate court (Children Court), whereby the appeal moved by him under Section 101 of JJ Act, 2015 (against the order of the CWC) was dismissed at the stage of admission. The appellate court noted that the appeal in the case would lie before the District Magistrate as per Section 27 of the JJ Act,a view, which was disapproved by the HC in the instant matter.

It was the case of the revisionist that he is the father-in-law of the detenue (victim girl) and that because her husband (i.e. his son) has been charge-sheeted and is facing trial in the instant case, therefore, she may be released from protection home into his custody as he better entitled to claim her custody and that her welfare can only be looked after by him.

It was also claimed that the girl's parents never came forward to take her into their custody; and that the girl herself wanted to remain in her in-law's family. It is further submitted that the CWC ignored all the facts and circumstances of the matter and passed an order to send her to a protection home in an arbitrary manner. 

High Court's observations 

At the outset, the Court noted that since the revisionist had not moved any application before the CWC to obtain the custody of the victim girl, he could not be treated as an aggrieved person and therefore, there was no occasion for him to move any appeal challenging the impugned order passed by the CWC.

Further, the Court noted that any detention in a protection home, of a child in need of care and protection is purely temporary in nature and that as per Section 104 of the JJ Act, CWC has ample powers to amend its order, wherever required, for any good reason including change in circumstances.

In view of this, the Court observed that the alleged father-in-law can apply to CWC seeking custody of the victim girl and the same can be decided by the CWC in the light of provisions of Section 104 of the J.J. Act, 2015.

Regarding the merits of the order, the Court noted that CWC's order had been passed in a most superficial, cursory and cavalier manner as no proper inquiry had been made in the matter (as per Section 36 of JJ Act) and that no social investigation report was submitted before the Committee for passing a final order as is required by section 36 (2) of the JJ Act.

"In a number of cases, coming before this Court this is being noted that C.W.C. is passing superficial orders without conducting proper inquiry and disposing of the matters with nonchalance. The custody or detention of victim in a protection home are not trivial matters. The very first requirement is to declare him/her as a child in need of care and protection and second is to conduct a proper enquiry as regard his/her lodgement or care and custody keeping in mind the need and suitability of juvenile home/person to whom he/she is entrusted," the Court further remarked.

Further, regarding the order of the appellate court dismissing the appeal at the admission stage, the Court asserted that the appellate court, instead of deciding the matter on merits, declined to exercise its powers on "patently wrong assumptions" that the appeal would lie before the DM.

"It is difficult to understand how such a view has been taken by the appellate court that it had no jurisdiction to hear the challenge to an order of this nature passed by the Child Welfare Committee, in appeal. As is quite obvious, an appeal shall lie to children court against all the orders passed by the Child Welfare Committee except where order has been passed relating to foster care or sponsorship foster care," the Court added.

Consequently, the Court disposed of the petition while granting an opportunity to the revisionist to move an application before the CWC. The Court further directed the CWC to decide the same in accordance with law, preferably within a month of moving such an application.

Case title - Ram Bahadur Singh vs. State of U.P. and Another 2024 LiveLaw (AB) 142 [CRIMINAL REVISION No. - 617 of 2024]

Case Citation: 2024 LiveLaw (AB) 142

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