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2006 DIGILAW 1094 (PAT)

Bijay Kumar Paswan v. State Of Bihar

2006-11-21

NAVANITI PRASAD SINGH

body2006
Judgment Navaniti Prasad Singh, J. 1. The petitioner has filed this writ application challenging the order passed by the Chairperson of the Child Welfare Committee constituted under the provisions of the Juvenile Justice (Care and Protection) of Children Act, 2000. By the said order dated 8.8.2006, the Chairperson has released the daughter of petitioner named Priyanka Prachi to the custody of her alleged elder brother-in-law solely on the ground of medical report showing the age of the girl to be 18/19 years old. In view of the delicacy of the situation, this Court issued notice to the respondents and they have filed counter- affidavit. Counter-affidavit has also been filed on behalf of the Chairperson of the Child Welfare Committee whose order and action is under challenge. 2. Heard Shri N.K. Agarwal, learned Senior Counsel in support of the application and Shri Shashank Shekhar, learned counsel appearing for the respondent-Chairperson, Child Welfare Committee and the counsel for the State and with their consent, this application is being disposed of at the stage of admission itself. 3. The facts are not in dispute. The girl in question Priyanka Prachi is undisputedly the daughter of the petitioner. On 13.7.2006, it is alleged by the petitioner that her daughter was kidnapped by some persons. According to the petitioner, the girl in question is about 15 years of age as would be evident from the Admit Card of the girl for examination of Class-VIII on which she has also put her signature. Her date of birth as shown there is 18.5.1991. On the girl being recovered, she was produced in the Court of learned Sub-divisional Judicial Magistrate, Biraul at Benipur. He ordered that her age be determined medically by a Medical Board. In the meantime, there being several conflicting claimants claiming her custody, he directed that the girl be produced before Child Welfare Committee for orders regarding determination of her age and for her care and protection. It was informed to him that such a committee is only at Patna. Accordingly, the said girl was directed to be taken to Patna and handed over to the said Committee for care and protection. Accordingly, the daughter of the petitioner was sent to Patna and put up in the State After Care Home at Gaighat, Patna where she arrived on or about 19.7.2006 and on the same day, she was produced before the Child Welfare Committee, Patna. Accordingly, the daughter of the petitioner was sent to Patna and put up in the State After Care Home at Gaighat, Patna where she arrived on or about 19.7.2006 and on the same day, she was produced before the Child Welfare Committee, Patna. It appears that the said Committee was informed that medical report was awaited and, as such, no further action was taken and the girl was detained in the State After Care Home at Gaighat. On 18.7.2006, an Assistant Professor of Department of Forensic Science, Darbhanga Medical College, Laheriasarai submitted his opinion after examination of the girl in question putting her age to be between 18 and 19 years. This report was then forwarded by the learned Sub-divisional Judicial Magistrate to the Superintendent, Child Welfare Committee, Patna by his letter dated 4th August, 2006. On 8th August, 2006, the superintendent of State After Care Home, Gaighat forwarded the girl in question to the Chairperson of the Child Welfare Committee, Patna along with the medical report in question stating that the girl had been in their custody since 19.7.2006 and was to be produced along with the medical report which had been received vide letter dated 4.8.2006. 4. What now happens is the matter of dispute. On 8.8.2006, the girl is produced before the Chairperson of the Child Welfare Committee who notes as under: The girl Priyanka Prachi, according to medical report is 18/19 years old and wants to go with her elder brother-in-law. The Superintendent is asked to release Priyanka in the custody of the brother-in-law. 5. This noting is made on the letter by which the girl and the medical report was forwarded to the Committee. It is the legality/ propriety of the aforesaid direction releasing the girl in question that has been questioned by the father of the girl. 6. Under the Juvenile Justice Act, 2000, there are apart from other categories, two types of juvenile, one juvenile in conflict with law which is juveniles who have alleged to have committed some offence but being a juvenile cannot be proceeded against as an ordinary criminal. The other category is juvenile who are in need of security and protection. Their interest is dealt with the Chapter-3 of the said Act. Sec. 29 talks about constitution of Child Welfare Committee. The other category is juvenile who are in need of security and protection. Their interest is dealt with the Chapter-3 of the said Act. Sec. 29 talks about constitution of Child Welfare Committee. The Committee consists of a Chairperson and four other members as the State Government may appoint of whom at least one shall be a woman and another of expert of matters concerning children. Section 29(5) provides that the Committee shall function as a Bench of Magistrates and have the power conferred by the Code of Criminal Procedure on Metropolitan Magistrate or as the case may be a Judicial Magistrate of First Class. This means that the said Committee would have Magistrates power of ordering enquiry taking evidence examining persons. Sec. 30 then deals with the procedure of the Committee. It, inter alia, provides that the Committee shall meet at such times and shall observe such rule or procedure in regard to the transaction of business at its meeting as may be prescribed. Sub-section (2) of Sec. 30 provides that a child in need of security and protection may be produced before an individual member for being placed in safe custody or otherwise when the Committee is not in session. Subject to the provisions of Sub-sec. (1), sub-section (4) thereof provides that notwithstanding absence of any member of the Committee no order of the Committee would be invalid only by absence of any member during any stage of proceeding. Sec. 31 then confers authority on the Committee to dispose of cases for care, protection, treatment, development and rehabilitation of children. There are then provisions with regard to the power of the Committee. 7. From the aforesaid, it would be seen that primary duty is entrusted to the Committee to go into various questions deliberate upon it and pass orders. It permits a single member to act on behalf of the Committee only when Committee is not in session. It does not mean that if the Department has been duly constituted but on a particular day or on a particular time it is not scheduled to meet then any one person would automatically exercise powers wherever he be. In my opinion, provision of a single person taking a decision is an exception to the rule of Committee itself deciding otherwise the whole purpose of the Committee being formed would be defeated. In my opinion, provision of a single person taking a decision is an exception to the rule of Committee itself deciding otherwise the whole purpose of the Committee being formed would be defeated. The learned counsel for the respondent-Chairperson drew my attention to the rule as made by the State Government which provide that a decision taken by a single member if approved by all the members of the Committee subsequently would be valid. To my mind, this will operate only in emergent situation and not as a matter of routine. It is a matter of common experience that post decisional approvals are rarely refused. What the law contemplates is a deliberation by the Committee. Here, there was no urgency in the matter. The daughter of the petitioner was at Patna since 19th of July, 2006 in the After Care Home awaiting medical report. No sooner the medical report came, she was produced before the Chairperson who without giving it a second thought accepting the medical report as a sacrosanct truth released the daughter of the petitioner. She did not even care to, in the meantime, notice the parents of the girl. Even as per the medical report, it was not that she was definitely major. The medical report clearly stated that she was about 18 to 19 years which expression in common English would mean she could be less than 18 years also and that is why she was in the After Care Home and that is why she was produced before the Chief Welfare Committee. I regret to hold that the Chairperson completely failed to exercise the jurisdiction and the duty cast upon her in this regard. It must be remembered that such a Committee has certain legal and social obligations. Admittedly, she was dealing with a girl of tender age. Such Committees are not to act blindly in one direction or another. Such orders have legal and social repercussions. I say no more. 8. In view of the aforesaid, I hold that the order as passed by the Chairperson of the Child Welfare Committee was wholly without jurisdiction and liable to be quashed and is quashed as such. Respondents are directed to see that the girl is recovered and produced before the Child Welfare Committee, Patna who shall take further steps in accordance with law after notice to all parties concerned. 9. Respondents are directed to see that the girl is recovered and produced before the Child Welfare Committee, Patna who shall take further steps in accordance with law after notice to all parties concerned. 9. In view of the fact that I have found the actions of the Chairperson, Child Welfare Committee not to be in accordance with law and she has been represented and heard, I do not think it proper to issue notice to other private parties involved in the present case. 10. The girl would be properly escorted as if she is a child in need of care and protection. She will be produced before the Child Welfare Committee on the date as determined by the Committee which should not be a long date. The Committee would simultaneously issue notice to the girls parents and to the girls alleged husband and alleged in-laws. The duty of the Committee will not end by merely determining the age and passing appropriate orders but it would further be to bring about reconciliation between the families because it cannot be lost sight of that we are dealing with girl of a tender age who is not fully matured even though she may be technically above 18 years. 11. With this observation, this writ application stands disposed of. 12. A copy of the order may be given each to respondent No. 12 and the State Counsel.