Whether Writ Of Habeas Corpus Maintainable Against Judicial Order Sending A Juvenile To A Juvenile Home? Allahabad High Court FB To Decide

The Full Bench will also decide whether even a minor can be kept in the Juvenile Home/ Nari Niketan/ Child Care Home against his/ her wishes?

The reference is made by a Bench comprising Justices Pritinker Diwaker and Pradeep Kumar Srivastava in a writ of habeas corpus filed by an alleged minor girl, lodged at the Children Home (Girl) at Saharanpur on the directions of the Child Welfare Committee, allegedly against her wish.

Background

The Petitioner, on a complaint filed by her mother, was alleged to have been kidnapped by one Arjun. Accordingly, the latter was booked for offence under Sections 363 and 366 of IPC and the former was sent to the Children Protection Home by the Child Welfare Committee.

The Petitioner's case was that she had left her mother's house willingly as she was subjected to torture there, and that she was happily living with her friend Rachna, who happened to be the sister of Arjun.

She had filed the present writ petition against the order of the Child Welfare Committee, claiming that she is not a minor, and even if she were one, she could not have been kept at the Children Home against her wishes.

Disputing the maintainability of this petition, the Standing Counsel submitted that writ of habeas corpus is not maintainable as the order impugned has been passed by the Child Welfare Committee and the judicial order, right or wrong, cannot be assailed in a petition seeking writ of habeas corpus.

It was argued that a judicial order can only be challenged before the appellate Court and the Petitioner has an efficacious alternative remedy of filing an appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Court's Observations

In this backdrop, the Court observed that there are two sets of judgments covering the field, first— that support the Petitioner's case and second— that support the State's view.

Precedent's in Petitioner's favour

On the question of whether a minor can be detained at Protection Homes against her wishes, the Court noted that in Kalyani Chowdhary v. State of UP, 1978 Cr LJ 1003 (DB), a Division Bench of the High Court had taken the view that: "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 and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, 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."

Similarly, in Pushpa Devi v. State of Uttar Pradesh & Ors., 1994 HVVD (All) C.R. Vol. II 259, it was held, "In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it."

The aspect pertaining to legality of such orders of a Magistrate/ Committee was discussed in Preeti Nishad v. State of Uttar Pradesh, WP (HC) No.146/ 2015, where it was held,

"She has made statement before this Court that she does not want to live in any Nari Niketan or Sudhar Griha. She does not even want to live with his father. Somehow due to incorrect judicial order she is languishing in Nari Niketan for the last seven months. It will be a travesty of justice if this Court dismisses this petition on any alternative remedy. The law on the subject is very clear. The Court cannot shut its eyes and relegate a citizen to further harassment and illegal detention. Neither the S.D.M. nor the A.D.J. had any jurisdiction to send a lady to a protective home without her consent. The respective orders passed by them are set aside."

Likewise, in Neelam v. State of Uttar Pradesh & Ors., WP (HC) No. 36519/ 2015, it was held, "merely because the petitioner has been sent to Nari Niketan pursuant to a judicial order which per se appears to be without jurisdiction, her detention cannot be labelled as "legal" rendering this Habeas Corups writ petition liable to be dismissed as not maintainable."

Thus, the Division bench noted that the above judgments lay down the law that writ of habeas corpus is maintainable even if the same has been filed against a judicial order of the Magistrate, sending the corpus to Juvenile Home/Nari Niketan/Child Care Home or any other Home duly authorized/recognized.

In some other judgments however, the Bench noted, a contrary view has been taken wherein it has been held that if a corpus has been sent to the Juvenile Home/ Nari Niketan/ Child Care Home pursuant to the order passed by the Committee, detention of the corpus cannot be said to be illegal, requiring issuance of a writ of habeas corpus.

Precedents in State's favour

In Saurabh Pandey v. State of Uttar Pradesh, 2019 SCC OnLine All 4430, it was held, "the order passed by the Child Welfare Committee placing the corpus in a protection home would be within its powers conferred by section 37 of the J.J. Act, 2015…as the corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, keeping in mind the provisions of the J.J. Act, 2015, the detention of the corpus cannot be said to be illegal so as to warrant issuance of a writ of habeas corpus."

Similarly, in Guria Bhagat @ Guria Rawani v. State of Jharkhand & Ors., 2013 SCC OnLine Jhar 2149, the Jharkhand High Court had held, "in no circumstances, it can be said that the custody of the petitioner with the Nari Niketan at Deoghar is an illegal custody. If the petitioner is aggrieved by the order of Judicial Magistrate, First Class, Dhanbad, she is at liberty to challenge the same in accordance with law before an appropriate forum. So far this writ of Habeas Corpus is concerned, the same is not tenable at law as the custody of the present petitioner with the Nari Niketan at Deoghar is by virtue of the order of Judicial Magistrate."

Similar view was taken by the Madhya Pradesh High Court in Irfan Khan v. State of MP & Ors., 2016 (3) MPLJ 449, and by the Gujarat High Court in Manish v. State of Gujarat, Spl Crl App No. 5659/ 2019.

In view of these circumstances, the Division Bench said,

"The two sets of judgments delivered by this Court reflect that one view of this Court is that a writ of habeas corpus is maintainable against the order passed by the Committee/Court, sending the corpus to the Juvenile Home/Nari Niketan/Child Care Home, whereas according to other view, if a judicial order has been passed by the competent Court, veracity of the same cannot be decided in a writ of habeas corpus and the same is required to be challenged before the competent Court.

Considering the various provisions of the Act and the law laid down by various Courts, we are of the view that this matter is required to be heard by a larger Bench, so that question…can be finally decided."

It proceeded to formulate the following questions to be decided by the larger Bench:

• 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 ?
• Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention ?
• Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes is legally valid or it requires a modified approach in consonance with the object of the Act ?

The Bench clarified that pendency of this Reference shall not come in the way of the Petitioner to avail other remedies available to him/her under the law questioning his/her detention.

Case Title: Rachna & Anr. v. State of UP & Ors.

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