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2023 Supreme(MP) 963
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
SUBODH ABHYANKAR, J.
Digvijay Singh and others – Appellants
Versus
State Of M. P. and others – Respondents
W. P. No. 23718 of 2023
Decided on : 30-10-2023
Advocate Appeared:
For the Appellant : Rajesh Joshi
For the Respondent: Koustubh Pathak
The application of sections 41 and 42 of the Juvenile Justice Act was deemed inappropriate, as the children were not in need of care or in conflict with the law.
Headnote:(A) Juvenile Justice (Care and Protection of Children) Act, 2015 - Sections 41 and 42 - Petition filed under Article 226 for immediate release of 16 children allegedly rescued on grounds of non-compliance with the Act - Court found no evidence substantiating mistreatment in the hostel or necessity of protections under the Act - The provisions invoked were not applicable as the children were neither in need of care nor in conflict with law. (Paras 2-8)
(B) Excess of Power - Respondents were found to have acted in excess of their prescribed powers, leading to the unnecessary harassing of the children involved in this case. (Para 9)
Facts of the case:
Petitioners, parents of the children, challenged the action taken by Child Welfare Committee stating it was arbitrary and unjustified as children were well cared for in their previous hostel. (Para 2)
Findings of Court:
The Court determined that the provisions of law invoked were not applicable in the case presented and ordered the release of children without further unjustified delay. (Para 9)
Issues: Whether sections 41 and 42 of the Act were applicable given the circumstances claimed by petitioners, and whether the actions of the respondents were justified. (Para 8)
Ratio Decidendi: The Court concluded that the lack of evidence regarding mistreatment and the absence of applicable conditions under the Act warranted the release of the children and rebuke of the respondents for excessive action. (Para 9)
Result: Petition allowed; respondents directed to release the children to their parents within a week.
| Table of Content |
|---|
| 1. petitioners seek release of children. (Para 1 , 2) |
| 2. children not in need of care or protection under act. (Para 3 , 5) |
| 3. respondent default in justification. (Para 4 , 6) |
| 4. clarification of relevant sections of the act. (Para 7 , 8) |
| 5. court's inclination to allow the petition. (Para 9) |
| 6. ensuring no adverse effects on children's education. (Para 10 , 11) |
| 7. final directions for release of children. (Para 12) |
ORDER :
This petition has been filed by the petitioners under Article 226 of the Constitution of India, seeking the following reliefs :—
“1. The respondents No. 5 and 6 to be directed to release children immediately;
2. Towards costs of this petition from the respondents to the petitioners.
3. Any other relief, which this Hon’ble Court may deem fit in the facts and circumstances of the case in favour of the petitioner against the respondents.”
2. The grievance of the petitioners are that they are the parents of the 16 children, who have been allegedly rescued by the respondent No. 4/Child Welfare Committee, Alirajpur on the pretext that the hostel in which, the children were staying, were running in contravention of sections 41 and 42 of the Juvenile Justice Care and Protection of Children Act, 2015 (hereinafter referred to the Act of 2015).
3. Counsel for the petitioners has submitted that sections 41 and 42 of the Act of 2015 would not be applicable in the present case, as it is neither a case where the children were in need of care and protection, as per sub-section (14) of section 2 of the Act 2015, neither the children are in conflict with law as provided under sub-sections (13) and (14) of section 2 of the Act, 2015. Thus, it is submitted that the respondents may be directed to release the children so that they can study from their hostel as all of them are school going children, and only because of the arbitrariness of the respondents, they are being retained in the child care home, the facilities of which are also not at par with the hostel in which they were earlier residing as per wishes of their parents.
4. A short reply has been filed by the respondent/State; whereas the respondents No. 5-Superintendent, Jivan Jyoti Balikagrah Sharmik Colony Rau, District-Indore and respondent No. 6-Superintendent, Maa Annanta Abhyate Balgrah, Mandav, District-Dhar, where the children have been kept, have not bothered to file their reply and to appear before this Court.
5. In the reply filed by the respondent/State, the action has been tried to be justified. However, along with the reply, there is no such document placed on record which would raise any doubt about the care with which the children were being treated in the hostel nor there is any statement of any children to suggest that they were ever mistreated. It is also found that there is no reply to the objection raised in the petition regarding the non applicability of sections 41 and 42 of the Act of 2015; whereas, it is found that the children have been rescued by resorting to sections 41 and 42 of the Act of 2015 alleging that the hostels were not being run under the aforesaid provisions of sections 41 and 42 of the Act, 2015.
6. Counsel for the respondent/State has submitted that as per the instructions, they have already served the notice of this petition to the respondents No. 5 and 6 by humdast model.
7. Heard. So far as the relevant provisions of the Act of 2015 are concerned, which are applicable in the present case, the same read as under :—
Section 2(13) “child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
Section 2 (14) “child in need of care and protection” means a child —
(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or
(ii) who is found working in contravention of the provisions of this Act or labour laws for the time being in force or is found begging, or li
