Allahabad, Mar 8 (ILNS) The Allahabad High Court today said that if a minor is kept in a Protection Home or Child Home by the order of the Magistrate or Child Welfare Committee, then it cannot be considered as illegal detention.
The full bench of Justices Sanjay Yadav, MC Tripathi and Siddharth Verma delivered this verdict, while disposing of the statutory questions raised on the Habeas Corpus Petition of Kumari Rachna and others.
The full bench said that the Juvenile Justice Board or Child Welfare Committee or Magistrate will be able to issue appropriate orders in accordance with the provisions of Section 37 of the Juvenile Justice Act and the will of the minor, as per the care and safety requirements of the minor.
The Habeas Corpus Writ Petition was filed by the petitioners, commanding fourth respondent Superintendent, Children Home (Girl), District Saharanpur to release corpus/second petitioner the minor, who has been illegally detained in the Children Home (Girl) in Saharanpur district.
The first information report was lodged by the mother of the minor on February 16, 2020, alleging that on February 15, 2020, her minor daughter aged 17 years was enticed by one Arjun.
She also alleged that while leaving the house, the Petitioner Corpus had taken certain ornaments and cash amount. She also alleged that the father, mother and brother of Arjun had helped him in taking the Petitioner Corpus.
The first information report was registered under Sections 363 and 366 of IPC against Arjun, his parents and relatives at Police Station Behat, in district Saharanpur.
The girl was recovered on March 4, 2020 and on the same day, her statement under Section 161 CrPC was recorded, wherein she alleged that as quite often, she was beaten by her mother and out of frustration, without informing her parents, she left home on February 15, 2020 and went to the house of her friend and first petitioner (sister of Arjun). The minor stated that she had gone of her own free will and was living with her friend.
However, she refused for medical examination. As per the High School Certificate, her age has been found to be 17 years, whereas as per radiological examination conducted on March 6, 2020, her age was found to be about 20 years.
Her mother also filed an application before the Chief Judicial Magistrate to the effect that the her daughter was minor and therefore, in the interest of justice, she may be sent to Balika Vikas Grih/Child Development Home.
The finding was recorded by the Magistrate, determining the age of petitioner to be 17 years. The Magistrate had directed for producing her before the Bal Kalyan Samiti or Child Welfare Committee for issuance of further direction with regard to her custody.
According to the order passed by the Magistrate, the girl was produced before the Committee and an order was passed by the Committee for keeping her in Children Home (Girl).
The AGA opposed the petition, by claiming that the Petitioner Corpus is minor as per her date of birth recorded in the High School certificate.
It has been urged that the age of the Petitioner Corpus is to be determined by applying the principles provided in Section 94 of the JJ Act, under which primacy is to be recorded to the date of birth entered in the educational certificate over the medical evidence.
It has also been objected by AGA that the writ of Habeas Corpus is not maintainable as the order has been passed by the Committee, pursuant to the order of the Magistrate and the judicial order, right or wrong cannot be questioned/assailed in the petition, seeking Writ of Habeas Corpus. ILNS/SNG/JR