IMPORTANT POINT
The existence of a statutory appeal under the Juvenile Justice Act, 2015 precludes the use of inherent powers under the Bharatiya Nagrik Suraksha Sanhita 2023.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagrik Suraksha Sanhita 2023, challenging the order passed by the Child Welfare Committee, Malappuram District, dated 07.08.2024.

2. Heard the learned counsel for the petitioner as well as the learned public prosecutor, addressing the maintainability of this petition.

3. Though it is argued by the learned counsel for the petitioner that, the inherent power of this Court under Section 528 of the Bharatiya Nagrik Suraksha Sanhita 2023, is wide enough to consider the order impugned, when the learned public prosecutor pointed out Section 101 of Juvenile Justice (Care and Protection of Children Act, 2015), (In short ‘JJ Act,2015’) which provides specific appeal from such an order, the learned counsel for the petitioner prayed for disposal of this Criminal Miscellaneous Case, observing so, with liberty to file an appeal.

4. In this matter, earlier, the petitioner herein filed Crl.M.C.No.6026 of 2024, and this Court passed an order on 01.08.2024, directing the Chairman, Child Welfare Committee, Malapuram District, to consider the request of the petitioner. Pursuant to the direction issued by this Court, the impugned order was passed by the committee consisting of five members; thereby, the request of the mother to get custody of the minor was disallowed. The petitioner is aggrieved by the order and is put under challenge herein. Now, the questions arise for consideration are,

1) Which is the forum to challenge an order passed by the Child Welfare Committee ?

2) What is the mode of challenge against such an order ?

5. Going by section 101 (1) of JJ Act, 2015, it is provided as under;

101. Appeals

(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:

PROVIDED that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days.

6. Similarly, as per Section 102 of the JJ Act, 2015, revisional power also given to the High Court, either on its own motion or an application/petition received in this behalf, to call for the record of any proceedings in which any Committee or Board or Children's Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit. Thus it appears that, apart from appeal, a revision also would lie against an order after preferring right of appeal challenging the said order. At the same time, when an appeal lies before a competent court, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed in tune with the spirit of section 401(4) of the Cr.P.C.

7. Since section 101 provides a statutory right of appeal to the aggrieved, in suppression of the right of appeal, there is no necessity to interfere with the order by invoking power under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023.

Since the remedy of the petitioner is before the Children’s Court, the appellate forum under Section 101 of the JJ Act, relegating the petitioner to opt the said remedy, this petition stands dismissed holding the same as not maintainable.