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2012 DIGILAW 287 (BOM)

Ashwin Jayantibhai Pannar v. State of Maharashtra

2012-02-08

P.D.KODE, V.M.KANADE

body2012
JUDGMENT By this petition, which is filed under Art. 226 and 227 of the Constitution of India, the petitioner is seeking a writ of habeas corpus directing respondent Nos. 1 to 3 to produce his two daughters Ms. Nikita Parmar and Ms. Kajal Pannar and for their release from the detention of respondent No.3 and for handing over their custody to him. 2. The brief facts are that, an offence was registered vide C.R. No. 421 of 2011 against one Narshee Ratanjee Katira on 19th November, 2011 for the offences punishable under Section 292A and 376 of the Indian Penal Code, in which it was alleged that the two daughters of the petitioner - Ms. Nikita Ashwin Parmar aged 17 years, and Ms. Kajal Ashwin Parmar 14 years old were sexually assaulted and raped by the accused and this sexual intercourse was recorded in video, which in turn was sold in the market. After the said complaint was filed, a letter was sent to the Hon'ble Chief Justice in which it was alleged by the President of Human Rights Welfare Association that the investigation was not being done properly by the local police and therefore, investigation should be transferred to some other investigating agency. The Division Bench headed by Hon'ble Chief Justice was pleased to pass an order dated 23rd November, 2011 and notice was issued to the Senior Police Inspector of the Mulund Police Station, the Commissioner of Police, Mumbai and the Director General of Police, Maharashtra State and it was made returnable on 25th November, 2011. The investigation thereafter was transferred to a Senior Lady Assistant Commissioner of Police, who took over the investigation and recovered the CDs which were recorded by the accused. Thereafter the police took the custody of the two minor girls and produced them before the Child Welfare Committee on 29th November, 2011. The Child Welfare Committee interviewed the minor girls' parents and noted that both the parents are unfit under Section 2(d)(iv) and (vi) of the Juvenile Justice (Care and Protection of Children) Act, 2006 (hereinafter referred to as "the Act") and therefore directed that the girls should sent to the Shelter Home. A direction was given that Ms. Kajal should be retained in the institution till she attains age of 18 years and Ms. Nikita should be kept in the institution till she attains age of 20 years. 3. A direction was given that Ms. Kajal should be retained in the institution till she attains age of 18 years and Ms. Nikita should be kept in the institution till she attains age of 20 years. 3. The learned counsel appearing on behalf of the petitioner submits that the order passed by the Child Welfare Committee without any jurisdiction since the case of the daughters of the petitioner does not fall under section 2(d)(iv) and (vi) of the Act, and that an order under Section 39(3)(f) of the Act could not have been passed since the daughters of the petitioner do not fall under the category of children who are in need of care and protection within the meaning of Section 2(d) of the Act. It is submitted that Section 39 would apply only to a case where the child falls under the category of 2(d) of the Act. It is submitted that even under Section 39 of the Act, so far as restoration is concerned, the parents were under category "A" and the institution was in the last category namely category "F". It is, therefore, submitted that there was complete non application of mind by the Child Welfare Committee in sending the girls to the Shelter Home, without taking into consideration the option of allowing their parents to retain the custody of the children or finding out whether any relative of the parents who could take care of the children. It is submitted that the said order being without jurisdiction, the petitioner has filed this petition under Art. 226 of the Constitution of India, since the detention by respondents is illegal detention. 4. On the other hand, learned PP appearing for the respondents submitted that though the daughters of the petitioner were abused for two years, the parents did not come to know about this fact, and therefore, this itself showed that the parents are not fit to take care of those children. It is also submitted that if the children were allowed to go to their own school, it would create a trauma on them, since they are likely to be criticized by their friends and other members of the Society. It is submitted that it was necessary to give counseling to the children in order to restore them and rehabilitate them in life. It is submitted that it was necessary to give counseling to the children in order to restore them and rehabilitate them in life. It is also submitted that against the order passed by the Child Welfare Committee, there is a statutory appeal, provided under Section 52, and therefore, the petitioner had an alternate efficacious remedy which was not exhausted by the petitioner and as such, the petition under Art. 226 of the Constitution of India was not maintainable. 5. We have interviewed both the girls. The elder daughter Ms. Nikita, aged 17 years old and is now appearing for 12th Standard Examination which has already commenced. We have granted permission to the said child Nikita to appear for examination under police escort. So far as other daughter Ms. Kajal is concerned, she is 15 years old. Both these daughters have stated that they would like to go home and stay with their parents. They have also stated that their parents provide food and clothing and both of them are self employed. Their father is doing tailoring and their mother is also in the same line. We have also interviewed the Member of the Child Welfare Committee and she has expressed an apprehension that if the children are allowed to stay with their parents, there is a possibility that they may resume their old life style. 6. The learned counsel for the petitioner, on the other hand submitted that the petitioner is ready to undertake that his daughters would be kept with his brother-in-law and mother-in-law at Bhayandar. The parents have also stated before us that they want to change their residence from Mulund and shift elsewhere permanently. The petitioner has also given undertaking to this Court that he will change school of his younger daughter Kajal. The petitioner has also given an undertaking that he is taking both the daughters for counseling for rehabilitation, once in a week. 7. In our view, taking into consideration the peculiar facts and circumstances of the case, it is apparent that the two daughters are victims of the said crime. There is no material on record to show that the parents had aided or abated the accused in this case and that the parents were not aware about the activities of their girls. Merely because they were not aware, it cannot be said that they are unfit to look after their girls. There is no material on record to show that the parents had aided or abated the accused in this case and that the parents were not aware about the activities of their girls. Merely because they were not aware, it cannot be said that they are unfit to look after their girls. Prima-facie, it, therefore, does appear that provisions of Section 2(d)(iv) and (vi) of the Act will not be applicable to the petitioner's daughters. And as such, Child Welfare Committee, prima- facie does not appear to have the jurisdiction to have taken custody of the children and in passing the impugned order. The girls have been produced before us. It would be in their interest to hand over their custody to their parents. In the report which is submitted by the Child Welfare Committee, it is mentioned that financial condition of the family is satisfactory and their monthly income is Rs.20,000/-. The only reason given by the Committee is that in view of the report of POSRC, the parents are unfit. No reasons have been given as to why the Committee came to the conclusion that the parents are unfit to look after the children. 8. In this view of the matter, respondent No. 3 is directed to hand over custody of the girls - Ms. Nikita Parmar and Ms. Kajal Parmar, to their parents, who are present in the Court forth with. The petitioner is permitted to take the custody of his daughters and take them to his brother-in-law from the Court and shall keep both the children there. The petitioner shall also admit the younger girl Ms. Kajal in another school. The petitioner shall also take both the daughters to the counselor of Rehabilitation Centre at Mankhurd, once in a week. 9. In our view, since the said order which is passed by the Child Welfare committee is prima-facie without any jurisdiction, the petitioner is entitled to directly approach this Court under Art. 226 of the Constitution of India. It is a well settled position in law that in the event an order passed by the concerned authority is without jurisdiction, though an alternate remedy of appeal is available, it is open for the petitioner to approach this Court directly, under Art. 226 and 227 of the Constitution of India. The preliminary objection raised by the learned Public Prosecutor, therefore, cannot be accepted. 10. The preliminary objection raised by the learned Public Prosecutor, therefore, cannot be accepted. 10. We must express our appreciation regarding the care taken by the institution of these two children and both the children have stated that they were properly looked after and that they were given all possible help in the said institution. We must express our appreciation in respect of the investigation which is being carried out by ACP Mrs. K. P. Gavit, Ghatkopar Division, and has filed chargesheet within time. 11. The petitioner shall also file a written undertaking in this Court within two weeks from today and also submit about the steps taken by him in that regard. S.O. to 22nd February, 2012. Ordered accordingly.