Allahabad High Court
Tanya Pandey vs State Of U.P. And 5 Others on 5 January, 2021
Bench: Surya Prakash Kesarwani, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 814 of 2020 Petitioner :- Tanya Pandey Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Shivkumari Chauhan,M.S. Chauhan Counsel for Respondent :- G.A. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Shamim Ahmed,J.
1. Heard Sri M.S. Chauhan, learned counsel for the petitioner and Sri Patanjali Mishra, learned A.G.A.-I, for respondent nos. 1 to 5.
2. This writ petition has been filed seeking the following reliefs:-
"(A) Issue a writ, order or direction in the nature of Habeas Corpus to set the corpus free at her liberty from illegal detention of respondent no.5.
(B) issue a writ, order or direction in the nature of mandamus commanding the respondents to handover the custody of corpus to the petitioner."
3. This writ petition has been filed on behalf of petitioner (corpus) through Smt. Usha Devi mother of the accused Ravishankar Thakur against whom F.I.R. No.0050 dated 25.04.2020 under Section 363/366 I.P.C. was lodged. During course of the investigation Section 176(3) I.P.C. and Section 5(j)(ii), and 5(1)/6 of the POCSO Act were also added. As per the statement of the corpus recorded on 07.08.2020 under Section 164 Cr.P.C. in which she had stated her age to be 16 years. As per F.I.R. version the age of the corpus is 15 years. The corpus was sent in the custody of Superintendent, Balika Grih Social Welfare Society, district Mau by order dated 31.7.2020 passed by Chairman, Child Welfare Committee. As per education certificate of the corpus, her date of birth is 20.05.2005. On 23.11.2020 the aforesaid order was challenged by the mother of the accused by filing an application before Incharge, CWC, Ballia praying for the custody of the corpus Tanya Pandey This application was rejected by the Chairman by order dated 28.11.2020 on the ground that the corpus Tanya Pandey is minor. The aforesaid rejection order dated 28.11.2020 has not been challenged by the petitioner in the present writ petition. However, a photostat copy of the order has been produced by the learned counsel for the petitioner before the Court, which is kept on record.
4. Learned counsel for the petitioner submits that corpus Tanya Pandey, has given birth to a child on 18.12.2020 and, that therefore, custody of the corpus is illegal and she may be set free at her liberty and her custody may be given to the mother of the accused. He further submits that the child has born after filing the writ petition, therefore, no averment in this regard could be made in the writ petition.
5. Learned A.G.A. submits that the corpus is a child below 16 years as her date of birth is 20.05.2005. In her own statement recorded under Section 164 Cr.P.C. the corpus has stated her age to be as 16 years. Therefore, there is no illegality in the impugned order to keep the corpus in Balika Grih Social Welfare Society, district Mau/ Bal Kalyan Samti, Mau. The mother of the accused has no right to ask for the custody of the corpus to her, particularly, when the accused is in jail. The order passed by the CWC is a judicial order, which has not been challenged in the present writ petition and even against the said order remedy of appeal lies under Section 101 of Juvenile Justice (Care and Protection of Children) Act, 2015.
6. We have carefully considered the submissions of the learned counsel for the parties and perused the record of the writ petition.
7. Section 94(2) of the Juvenile Justice (Care and Protection), 2015 (hereinafter referred to as ''the J.J. Act") provides for presumption and determination of age, as under:
"(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order."
8. Thus, as per provisions of Section 94(2) of the J.J. Act, the Child Welfare Committee or the Board has reasonable grounds for doubt as to whether the person brought before it, is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining, firstly, the date of birth certificate from school, or matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; secondly, the birth certificate given by a corporation or a municipal authority or a panchayat; and thirdly, in absence of educational certificate or birth certificate as aforementioned, the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. Thus, as per statutory mandate of Section 94(2) of the J.J. Act, primacy is to be accorded to the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned Examination Board and only in absence thereof, the birth certificate of a corporation or municipal authority or a panchayat can be looked into. When the certificates as provided under sub-clauses (i) and (ii) of sub-Section (2) of Section 94, is not available, only then the medical evidence as provided in sub-clause (iii) is to be taken into consideration. In the present set of facts, as per educational certificate, the date of birth of the petitioner is 20.05.2005.
9. The "juvenile" has been defined in Section 2(35) of the J.J. Act to mean a child below the age of eighteen years. The word "child" has been defined in Section 2(12) of the J.J. Act to mean a person who has not completed eighteen years of age. The phrase "child in conflict with law" has been defined under Section 2(13) of the J.J. Act to mean 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) of the J.J. Act defines the phrase "child in need of care and protection", as under:
"(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 labour laws for the time being in force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child or not) and such person--
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person;or
(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or
(vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable gains; or
(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;"
10. Section 37 empowers the Child Welfare Committee that on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, it may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders as provided in clauses (a) to (h) of Sub-Section (1) of Section 37. Section 37 of the J.J. Act is reproduced below:
"37. Orders passed regarding a child in need of care and protection.- (1) The Committee on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the following orders, namely:--
(a) declaration that a child is in need of care and protection;
(b) restoration of the child to parents or guardian or family with or without supervision of Child Welfare Officer or designated social worker;
(c) placement of the child in Children's Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child;
(d) placement of the child with fit person for long term or temporary care;
(e) foster care orders under section 44;
(f) sponsorship orders under section 45;
(g) directions to persons or institutions or facilities in whose care the child is placed, regarding care, protection and rehabilitation of the child, including directions relating to immediate shelter and services such as medical attention, psychiatric and psychological support including need-based counselling, occupational therapy or behaviour modification therapy, skill training, legal aid, educational services, and other developmental activities, as required, as well as follow-up and coordination with the District Child Protection Unit or State Government and other agencies;
(h) declaration that the child is legally free for adoption under section 38.
(2) The Committee may also pass orders for--
(i) declaration of fit persons for foster care;
(ii) getting after care support under section 46 of the Act; or
(iii) any other order related to any other function as may be prescribed."
11. Section 37(1)(c) of the J.J. Act empowers the Child Welfare Committee to place a child in Children's Home or fit facility or Specialised Adoption Agency for the purpose of adoption for long term or temporary care, keeping in mind the capacity of the institution for housing such children, either after reaching the conclusion that the family of the child cannot be traced or even if traced, restoration of the child to the family is not in the best interest of the child. The impugned order passed by the Child Welfare Committee is in exercise of powers under Section 37 of the J.J. Act. Under the circumstances, when undisputedly corpus - petitioner is a juvenile within the meaning of Section 2(35) and is in need of care and protection within the meaning of Section 2(14), the impugned order passed by the Child Welfare Committee under Section 37 is in exercise of powers under the J.J. Act, cannot be said to suffer from any illegality.
12. It would be relevant to observe that Hon'ble Supreme Court has consistently taken the view that the principles applicable for determining the age of "juvenile in conflict with law" are to be applied for determining the age of child victim vide Jarnail Singh Vs. State of Haryana1, Mahadeo Vs. State of Maharashtra2, and State of M.P. Vs. Anoop Singh3, (paras 14 to 18).
13. In the case of Independent Thought v. Union of India4, (paras-95, 96, 97, 107), Hon'ble Supreme Court held as under:
"95. Whatever be the explanation, given the context and purpose of their enactment, primacy must be given to pro-child statutes over IPC as provided for in Sections 5 and 41 IPC. There are several reasons for this including the absence of any rationale in creating an artificial distinction, in relation to sexual offences, between a married girl child and an unmarried girl child. Statutes concerning the rights of children are special laws concerning a special subject of legislation and therefore the provisions of such subject-specific legislations must prevail and take precedence over the provisions of a general law such as IPC. It must also be remembered that the provisions of the JJ Act as well as the provisions of the POCSO Act are traceable to Article 15(3) of the Constitution which enables Parliament to make special provisions for the benefit of children. We have already adverted to some decisions relating to the interpretation of Article 15(3)of the Constitution in a manner that is affirmative, in favour of children and for children and we have also adverted to the discussion in the Constituent Assembly in this regard. There can therefore be no other opinion regarding the pro-child slant of the JJ Act as well as the POCSO Act.
96. A rather lengthy but useful discussion on this subject of special laws is to be found in L.I.C. v. D.J. Bahadur in paras 52 and 53 of the Report. Briefly, it was held that the subject-matter and the perspective of the statute are determinative of the question whether a statute is a general law or a special law. Therefore, for certain purposes a statute might be a special law but for other purposes, as compared to another statute, it might be a general law. In respect of a dispute between the Life Insurance Corporation and its workmen qua workmen, the Industrial Disputes Act, 1947 would be a special law vis-à-vis the Life Insurance Corporation Act, 1956; but, "when compensation on nationalisation is the question, the LIC Act is the special statute". It was held as follows:(SCC pp.350-51) "52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes -- so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission -- the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to.
53.What are we confronted with in the present case, so that I may determine as between the two enactments which is the special? The only subject which has led to this litigation and which is the bone of contention between the parties is an industrial dispute between the Corporation and its workmen qua workmen. If we refuse to be obfuscated by legal abracadabra and see plainly what is so obvious, the conclusion that flows, in the wake of the study I have made, is that vis-a-vis "industrial disputes" at the termination of the settlement as between the workmen and the Corporation, the ID Act is a special legislation and the LIC Act a general legislation. Likewise, when compensation on nationalisation is the question, the LIC Act is the special statute. An application of the generalia maxim as expounded by English textbooks and decisions leaves us in no doubt that the ID Act being special law, prevails over the LIC Act which is but general law."
(Emphasis in original) The scope and amplitude of the two significant pro-child statutes may now be examined in light of the law laid down by this Court including Sections 5 and 41 of the IPC.
(i) The JJ Act
97. A cursory reading of the JJ Act gives a clear indication that a girl child who is in imminent risk of marriage before attaining the age of 18 years of age is a child in need of care and protection (Section 2(14) (xii) of the JJ Act). In our opinion, it cannot be said with any degree of rationality that such a girl child loses her status as a child in need of care and protection soon after she gets married. The JJ Act provides that efforts must be made to ensure the care, protection, appropriate rehabilitation or restoration of a girl child who is at imminent risk of marriage and therefore a child in need of care and protection. If this provision is ignored or given a go by, it would put the girl child in a worse off situation because after marriage she could be subjected to aggravated penetrative sexual assault for which she might not be physically, mentally or psychologically ready. The intention of the JJ Act is to benefit a child rather than place her in difficult circumstances. A contrary view would not only destroy the purpose and spirit of the JJ Act but would also take away the importance of Article 15(3) of the Constitution. Surely, such an interpretation and understanding cannot be given to the provisions of the JJ Act."
107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is -- this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC -- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years -- this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 IPC -- this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus."
14. In the present set of facts, it is not in dispute that as per educational certificate, the date of birth of the corpus is 20.05.2005. Hence, keeping in mind the provisions of Section 94 of the J.J. Act, the age recorded in the educational certificate cannot be discarded in the proceedings under the J.J. Act moreso when corpus in her statement recorded on 07.08.2020 under Section 164, Cr.P.C. has stated that her age is 16 years.
15. Once the corpus has been found to be a child as defined by Section 2(12) of the J.J. Act and allegedly, a victim of a crime, she would fall in the category of "child in need of care and protection" in view of clauses (iii), (viii) and (xii) of sub-Section (14) of Section 2 of the J.J. Act. Hence the order passed by the Child Welfare Committee placing in a protection Home would be within its powers confers under Section 37 of the J.J. Act.
16. For all the reasons stated above, the action of the respondent Nos.1 to 5 is neither without jurisdiction nor illegal nor perverse, keeping in mind the provisions of the J.J. Act, 2015. Therefore, the detention of the corpus cannot be said to be illegal so as to warrant issuance of a writ of habeas corpus. If the petitioner is aggrieved by the order of the Child Welfare Committee, she is at liberty to take recourse to the remedy of an appeal provided under Section 101 of the J. J. Act, 2015.
17. For all the reasons stated, above, the writ petition is dismissed.
Order Date :- 5.1.2021 NLY