Writ of habeas corpus not maintainable against Judicial Magistrate/ Child Welfare Committee order sending minor to Juvenile home: Allahabad HC

The Allahabad High Court has ruled that a writ of habeas corpus (filed for the release of persons illegally detained) is not maintainable against judicial orders passed to send a minor victim to a juvenile home/ Nari Niketan/ Child Care Home by a Magistrate or a Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2015..A Full Bench of Justices Sanjay Yadav, Mahesh Chandra and Siddhartha Varma settled the issue upon a reference being made in view of conflicting judgments on the issue. On Monday, this Bench concluded:."Analysing the orders passed by this Court as well as Jharkhand High Court, Madhya Pradesh High Court and Patna High Court, it can be safely 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.".The case before the Court concerned a girl who had run away from home alleging that she was being mistreated by her mother and brother. She had attempted to go and stay with a friend, as per one version of events. On the other side, it was alleged that she had been enticed into running away by her friend's brother and his family, for which a case had also been registered for kidnapping. .A Magistrate directed that the girl be produced before a Child Welfare Committee, which directed that she be sent to a Children's Home. This was done on the ground that she was a minor victim, since her school certificates showed her age as 17 years, although her radiological report indicated that she may be 20 years old. Pertinently, the Juvenile Justice Act gives precedence to educational certificates over medical evidence..The order sending the girl to the children's home was challenged by way of a habeas corpus petition, which also contended that the girl had expressed that she had wanted to live with her friend and that she cannot be detained in the children's home against her wishes. The case led to a question as to whether such a habeas corpus plea can be filed in such cases at all..The High Court's Full Bench has now ruled that such habeas corpus petitions cannot be filed in these cases. Rather, the Court has clarified that the available course of redressal, if such an order is argued to be illegal or irregular, is to move the appellate forums prescribed under the Juvenile Justice Act. ."... it is evident 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. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus", reads the order..The Court added that before passing orders for sending a minor to a children's home, "The wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.".The conclusions arrived at by the Full Bench have been summarised as follows:If a person 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 Juvenile Justice Act, such an order cannot be challenged or set aside in a writ of habeas corpus.An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee in sending the victim to a Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated "illegal detention."Under the Juvenile Justice Act, the welfare and safety of the child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee. The Magistrate/Committee must give credence to her wishes. .Read the Judgment: