The Allahabad High Court while disposing the revision petition said that an appeal shall lie to children court against all the orders passed by the Child Welfare Committee except where order has been passed relating to foster care or sponsorship foster care.
A Single Bench of Justice Jyotsna Sharma passed this order while hearing a Criminal Revision filed by Ram Bahadur Singh.
By means of the criminal revision, the revisionist Ram Bahadur Singh has challenged an order passed by the Child Welfare Committee (C.W.C) dated 09.02.2023 by which victim girl, a juvenile has been ordered to be kept in a ‘woman protection home’ and further an order passed by the appellate court dated 08.01.2024, whereby the appeal moved by the revisionist under Section 101 of JJ Act, 2015 was dismissed at the stage of admission.
The facts of the case are that the F.I.R came to be lodged against an unknown person in regard to the missing 15 year old daughter of the first informant under Section 363 IPC. The girl was recovered and was produced before the CWC. The C.W.C enquired into the matter and found that her family members refused to appear before the C.W.C for her custody and, therefore, with an unanimous opinion, she was directed to be kept in a Women Protection Home at Prayagraj. Ram Bahadur Singh filed an appeal challenging the aforesaid order under Section 101 of the J.J Act, 2015.
The main submissions of the revisionist are:-
First that he is father-in-law of the detenue and that because her husband (i.e his son) has been charge-sheeted and is facing trial in the instant case, therefore, she may be released from protection home into his custody; In the given circumstances he is better entitled to claim her custody and that her welfare can only be looked after by him; and that her own parents never came forward to take her into their custody; and that the girl herself wanted to remain in her in-law’s family.
It is further submitted that she did not give any evidence against her husband and that she does not face any threats from him and that CWC ignored all the facts and circumstances of the matter and passed an order of sending her to a protection home in an arbitrary manner.
It is contended in addition that the appeal filed by her father-in-law Ram Bahadur Singh has been dismissed without taking into account the relevant facts and circumstances and that the appellate court passed the order in a mechanical manner.
The Court noted that the revisionist- alleged father-in-law of the detenue, admittedly never moved any application before the C.W.C, for obtaining her custody. Obviously this question arises that when he did not move any application to obtain her custody, how can he be treated as an aggrieved person and therefore, whether any appeal could have been filed by him challenging the impugned order passed by the C.W.C.?
The Court observed that,
The J.J Act, 2015 is a comprehensive act dealing with two types of juveniles: first those who are treated as “child in conflict with law”, secondly, those who are treated as “child in need of care and protection”.
This is quite significant to note that this provision gives very wide and ample powers to the committee to amend its own order, wherever required, for any good reason which, in my opinion, may include change in circumstances. Section 104 of the J.J Act, 2015 prescribes a procedure before an order already passed can be amended. It says that “all persons concerned” or their authorised representatives shall be heard by the committee before such an order is amended.
A bare look at the relevant provisions of the J.J Act, 2015, gives an impression that any detention in a protection home, of a child in need of care and protection is purely temporary in nature and rightly so. This fact should not be relegated to the background that the J.J Act, 2015 has been enacted keeping in mind the general principles, as have been enumerated in Chapter II of the Act itself. The general principles include the principles of best interest, principle of family responsibility, principles of safety, principle of institutionalization, principle of repatriation and restoration. All the aforesaid principles are guiding factors for the Board as well as for the C.W.C while implementing the provisions of this Act. These principles may act as a beacon light while considering and deciding upon the matter of lodging a child, particularly a child in need of care and protection, in a juvenile home or when releasing her/him in care or custody of any suitable person or a family member. In my opinion the committee is expected to take a reasoned decision, after due deliberations as regard where it would be best suited to lodge a “child in need of care and protection” in the facts and circumstances of a case and that where his best interest shall be served and therefore, which institution or which person/family member shall be in better position to take care of his well being.
The C.W.C may also review or revise its own order where circumstances prompt for such an action or where any new development takes place, compelling it to take a different stand/view. Such powers have been vested in C.W.C, notwithstanding the powers of appellate court or the revisional court. I hasten to add that this is not to say that appellate court or the revisional court can not exercise its powers wherever it can and ought to, the Court said.
The Court further said that the appellate court instead of deciding the matter on merits, declined to exercise its powers on patently wrong assumptions. It is difficult to understand how such a view has been taken by the appellate court that it had no jurisdiction to hear the challenge to an order of this nature passed by the Child Welfare Committee, in appeal. As is quite obvious, an appeal shall lie to children court against all the orders passed by the Child Welfare Committee except where order has been passed relating to foster care or sponsorship foster care.
In view of the legal provisions as mentioned above, the Court disposed of the revision petition and granted opportunity to the revisionist to move an application before the CWC.
“In case, such an application is moved, the C.W.C shall decide the same in accordance with law, preferably within a month of moving such an application. It is made very clear that the Court has not touched upon the merit of the claim of the applicant/revisionist in any manner. The C.W.C shall decide the matter uninfluenced by observations, if any, made on facts, by the Court as regard his claim.
As the revisionist has been given opportunity to move a fresh application before the C.W.C hence, there is no need to set aside the earlier order passed by the C.W.C, however, as far as order passed by the appellate court is concerned, it is patently against law, hence, it is set aside”, the order reads.