Remanded

Girish Kumar v. State of U.P. and 3 Others

Allahabad HC25 Nov 2022CRLR/1399/2022

Case brief

AI extract

What is this about?

This High Court held that appeals against detention orders of the Child Welfare Committee lie before the Children's Court, not the District Magistrate. The matter was remanded for fresh consideration in light of the child's new status as a mother, directing the appellate court to prioritize the child's safety and welfare.

What did the court decide?

The impugned order dated 26.10.2022 is set-aside and the matter is remanded to the appellate court to hear the matter afresh and pass order after hearing both sides.

Girish Kumar Vs State of U.P. and 3 Others — Child Custody and Guardianship | Allahabad HC (2022)

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Court No. - 91 ............................................ A.F.R.

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Case :- CRIMINAL REVISION No. - 1399 of 2022

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Revisionist :- Girish Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Sushil Kumar,Mukul Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Mukul Yadav, learned counsel for the revisionist and learned A.G.A. for the State.

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This revision has been filed challenging the order dated 11.01.2022 passed by the Child Welfare Committee, Kasganj and further challenging the order dated 26.10.2022 passed by the Special Judge (POCSO Act) in Criminal Appeal No.7 of 2022 in a matter arising out of Case Crime No.140 of 2022, under sections- 363, 366, 376 I.P.C., Police Station- Sunngarh, District- Kasganj.

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The relevant facts giving rise to this revision are as below:-

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An F.I.R. was lodged by father of the victim alleging abduction of his daughter; the victim was recovered and was directed to be produced before the Child Welfare Committee; the Child Welfare Committee passed an order dated 11.01.2022 simultaneously rejecting four applications, one moved on behalf of mother of the victim and second moved on behalf of the married sister of the victim namely Islanti and two applications moved by the victim herself. The facts and circumstances of the case as put before the Child Welfare Committee indicated that the victim became pregnant with the child of her jeeja Om Pal, husband of her real sister Islanti. It may be noted that one of the applicant was Islanti, wife of Om Pal; the girl was married of to one Ghanshyam by her parents; she did not stay with her husband; instead went with her jeeja and her real sister where she got pregnant; the Child Welfare Committee observed that there were two applications from the side of victim herself, one expressing willingness to go with her parents and the other expressing willingness to go with her sister and jeeja. Taking all the circumstances into consideration, the Child Welfare Committee, found it fit to detain her in the Rajkiya Balgrih Swaroopnagar, Kanpur by order dated 11.01.2022.

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The appeal preferred by her father against the above order

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was dismissed, inter-alia on the assumption that legally appeal could have been filed before the District Magistrate only and that the children court had no jurisdiction to hear the appeal.

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Section- 101 of the Juvenile Justice Act, 2015 is as below:-

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"(1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the "Children's Court", except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate."

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It is quite clear from this provision of law that appeal shall lie to the District Magistrate with respect to decisions by the Child Welfare Committee relating to foster care and sponsorship after care only. 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. Before analysing this provision, it will be appropriate to peruse the order passed by the Child Welfare Committee to decide upon whether this order falls in the category where the appeal may lie to Children's Court or in the category where appeal shall lie to District Magistrate.

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Following facts are not disputed that the victim girl was produced before the Child Welfare Committee in pursuance of an order passed by Judicial Magistrate, Kasganj in a case arising out of a matter in Case Crime No.140 of 2021, under sections- 363, 366, 376 I.P.C., Police Station- Sunngarh, District- Kasganj.

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From perusal of the impugned order, it seems that the victim was put to counselling by the Child Welfare Committee and she gave a statement that she was married of to one Ghanshyam against her wishes by her father in July, 2021; she did not like him therefore, she returned to her parents place; meanwhile, she developed illicit relations with her jeeja Om Pal and eloped with him to a place in Punjab where she stayed with him for 15 days and also called her sister and all the three lived together peacefully; she became pregnant with the child of her jeeja and now she wanted to stay with him only; the Child Welfare Committee noted that her natural mother Meera Devi moved an application for releasing the victim in her custody wherein she alleged that her (victim's) jeeja enticed her away though he already had four kids from her elder sister and that the victim is minor, not able to understand the consequences of her act; the Child Welfare Committee also noted that her real sister, Islanti wife of Om Pal also moved an application to get her released into her custody; in her application, Islanti imputed certain

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allegations against her own father stating that her father got the victim married of to a person after getting some money in return; victim took shelter in her house and was staying with them out of her own free will and desire at Punjab and that a false F.I.R. had been lodged by her father; it was also alleged therein that she was not a minor and that she wanted to go with her sister and jeeja only. The Child Welfare Committee came to conclusion that the victim is a minor aged about 16 years and 3 months and that she got pregnant because of rape committed on her by her jeeja and she was unwilling to go with her husband Ghanshyam; in these circumstances, the impugned order detaining her in a Rajkiya Balgrih was passed.

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This revision has been filed on behalf of the father of the victim on the ground that because she is minor she should have been released in custody of her parents/revisionist.

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I went through the material on record in the light of submissions before this Court. As per scheme of the Juvenile Justice Act, the Child Welfare Committee, irrespective of any other law, has power to deal exclusively with all proceedings relating to 'children in need of care and protection' under Section-29 of the Juvenile Justice Act, 2015. The functions and responsibilities of Committee include taking cognizance of and receiving the child produced before it, conducting inquiry on all issues relating to safety and well being of a child as well as ensuring care, protection, appropriate rehabilitation and most importantly restoration of 'children in need of care and protection' ( Section-30 of the Juvenile Justice Act, 2015). Section-37 of the Juvenile Justice Act, 2015 empowers the Committee, after being satisfied through an inquiry, consideration of social investigation report submitted by Child Welfare Officer and taking into account the child's wishes, in case the child is sufficiently matured, to take a view and pass one or more of following order, namely:-

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(a) declaration that a child is in need of care and protection;

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(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker;

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(c) placement of the child in Children's Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child;

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(d) placement of the child with fit person for long term or temporary care;

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(e) foster care orders under section 44;

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(f) sponsorship orders under section 45;

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(g) ........;

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(h) .........

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On perusal of the above provisions of Juvenile Justice Act, 2015, it is demonstrated that Child Welfare Committee is given vast powers on the principles of best interest of a child, a thread which goes through the whole of the scheme of the Juvenile Justice Act, 2015. It has been specifically provided by the section-3 of the Juvenile Justice Act, 2015 that Central Government, State Governments, the Board and other agencies, as the case may be, while implementing the provisions of the Act, shall be guided by the fundamental principles which include principles of best interest, principle of family responsibilities, the principle of safety, the principles of repatriation and restoration and several others.

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The provisions of law as aforesaid are being reproduced here with the twin object; firstly , that when an order is passed of the nature as is under challenge before this Court, the appeal shall be entertainable by the Children's Court and not by the District Magistrate; the District Magistrate is empowered to hear appeals only against the decisions of the Committee relating to foster care and sponsorship after care. The order in question does not fall in this category. The appellate court was thus wrong in holding that appeal did not lie before it. Therefore, the impugned order is liable to be set-aside; secondly , it may be noted that when a child in need of care and protection is lodged in any shelter home, it is a measure of temporary nature; the Child Welfare Committee is fully empowered to take a decision where it is found no more necessary to detain her. It may be noted that legally a child in need of care and protection may be detained for a further period even if he/she has attained majority if it is found that it will not be in his/her best interest to release him/her immediately.

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It is brought to notice of this Court that in the meanwhile, the revisionist has delivered a child, who too is staying with her in the shelter home.

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Legally the Child Welfare Committee is fully empowered to take a fresh decision in respect of her detention/release in view of new development that now she is a mother with an infant to take care and that she might be in need of a family support. Since this case is being remanded to appellate court for deciding the matter afresh, hence before any decision as to her

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continued detention or release is taken by the appellate court, extreme care shall be taken with regard to her and her child's safety, welfare, protection and rehabilitation. The Child Welfare Committee has a very significant role to play in such matters and is entrusted with a responsibility to take measures to achieve the aim and object of the Juvenile Justice Act, 2015. Hence, the appellate court may, in its wisdom call for a detailed report from the Child Welfare Committee before deciding the appeal. No doubt the Court is faced with peculiar facts and circumstances in this case. It may fruitfully be noted that the Court while functioning as an appellate court under section101 of the Juvenile Justice Act, 2015 is not so much concerned with legal rights of the parties. Instead the decision is to be taken in best interest of the child after anticipating and weighing all pros and cons. With the above observations, the matter is remanded to the appellate court to hear the matter afresh and pass order after hearing both the sides.

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The impugned order dated 26.10.2022 is set-aside and the matter is remanded back. The court concerned is directed to decide the matter afresh in the light of observations of this Court as above.

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Before parting with the matter, a legal point of general importance needs to be pointed out. Section- 2(20) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines:- "Children's Court" means a court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act."

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It is apparent that wherever a Special Court under the Protection of Children from Sexual Offences Act, 2012 is in existence, such court shall function as "Children's Court" under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015. This may not be taken to mean that the jurisdiction under the Juvenile Justice (Care and Protection of Children) Act, 2015 lies in Special POCSO Court. To say in plain words, whenever a matter relating to a "child in conflict with law" or a 'child in need of care and protection' is taken up or decided by a competent court that court shall be referred to as Children's Court. It has come in my observation that Judges of Special POCSO Courts functioning as appellate court in respect to 'child in need of care and protection' or "child in conflict with law" wrongly refer themselves as Special Judge, POCSO Court or even as Additional Sessions Judge. Its proper designation is "Children's Court" . It is necessary to point out

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this error which is being committed by the concerned courts almost all over the State of Uttar Pradesh.

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Registry is directed to circulate this judgement to all the District Judges of State of U.P.

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Order Date :- 25.11.2022

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Saif

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Digitally signed by SHAIKH SAIF ABDIN Date: 2022.12.05 17:38:06 IST Reason: Location: High Court of Judicature at Allahabad

Girish Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Girish Kumar v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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