Point of law : Where the custody of the petitioner corpus as been handed over as per a judicial order passed a Judicial Magistrate or a court of competent jurisdiction or a CWC constituted under the JJ Act, the said order cannot be assailed in a petition seeking a writ of habeas corpus.

JUDGMENT :

1. Heard Sri Awadh Bihari Pandey, learned counsel for the petitioners and Sri Vinod Kant, learned Additional Advocate General assisted by Sri Pankaj Saxena, learned Additional Government Advocate-I and Sri Arvind Kumar, learned Additional Advocate General appearing for the State-respondent.

2. The present petition seeking a writ of habeas corpus has been filed on behalf of petitioner no.1-corpus through the petitioner no.2 asserting to be her husband, seeking to contend that the petitioner corpus has been illegally detained by her father-respondent no.4.

3. Learned Additional Advocate General, has pointed out that instructions have been received to the effect that in terms of an order dated 9.8.2021 passed by the Child Welfare Committee, CWC constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015, JJ Act, the petitioner no.1, stated to be a minor, has been placed under the care of her father-respondent no.4 and in view thereof since the custody has been handed over pursuant to a judicial order, the same cannot be said to be illegal and the present petition seeking a writ of habeas corpus would not be entertainable. It is pointed out that the order, for placement of a child under the care of a parent, made by the CWC, would be referable to the provisions under sub-rule (8) of Rule 18 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rules, 2016.

4. In response to the aforesaid objection with regard to entertainability of the petition, learned counsel for the petitioners has sought to refer to the factual aspects of the case and has asserted that he was unaware of the proceedings before the CWC.

5. Learned Additional Advocate General has referred to the provisions of the JJ Act to point out that the Child Welfare Committee is a committee having a statutory status constituted as per the provision contained under Section 27 of the JJ Act. For ease of reference, Section 27 of the JJ Act is being extracted below:-

“27. Child Welfare Committee.—(1) The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification.

(2) The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom atleast one shall be a woman and another, an expert on the matters concerning children.

(3) The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning.

(4) No person shall be appointed as a member of the Committee unless such person has been actively involved in health, education or welfare activities pertaining to children for atleast seven years or is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human development.

(5) No person shall be appointed as a member unless he possesses such other qualifications as may be prescribed.

(6) No person shall be appointed for a period of more than three years as a member of the Committee.

(7) The appointment of any member of the Committee shall be terminated by the State Government after making an inquiry, if—

(i) he has been found guilty of misuse of power vested on him under this Act;

(ii) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;

(iii) he fails to attend the proceedings of the Committee consecutively for three months without any valid reason or he fails to attend less than three-fourths of the sittings in a year.

(8) The District Magistrate shall