[All HC Full Bench] Is Writ of Habeas Corpus Maintainable Against a Judicial Order sending the victim to Women Protection Home/Juvenile home?

On Monday, a Full Bench of Allahabad High Court delivered its Judgment on a significant issue pertaining to Writ of Habeas Corpus.

The questions referred to the larger bench were:

“(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?;

(2) 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?; and

(3) 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 ?”

A Full Bench comprising Hon’ble Justice Sanjay Yadav, Hon’ble Justice M.C. Tripathi and Hon’ble Justice Siddharth Verma delivered its verdict on the above questions referred to it.

The Bench referred to various Judgments of Supreme Court and High Court including the Constitution Bench Judgment of Kanu Sanyal vs. District Magistrate, Darjeeling & Ors to examine the nature and scope of Habeas Corpus Writ.

The court further observed that:

it cannot be presumed that in case 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, the detention of the corpus cannot be said to be illegal and in case the petitioner is aggrieved by the order of the Child Welfare Committee, or the Magistrate, the petitioner is at liberty to take recourse of remedy of an appeal or revision provided under Sections 101 and 102 of the J.J. Act.

After analysing the orders passed by Allahabad High Court Court as well as Jharkhand High Court, Madhya Pradesh High Court and Patna High Court, the Court concluded that the writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.

In view of the above the court answered the reference as follows:

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?;

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.

Question No.2: “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?”

Answer: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention.

Question No.3 : “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 ?”

Answer: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h)

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