The Allahabad High Court while disposing the criminal revision 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 Smt Soni Saxena @ Neetu Saxena.
The criminal revision has been filed challenging the order dated 20.07.2023 and 23.08.2023 passed by the Child Welfare Committee, Shahjahanpur in relation to a matter arising out of case under sections 342, 376(3), 506 IPC and section 5(dha)/6 POCSO Act, by which firstly she was put in a government protection home under section 37(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 by Child Welfare Committee vide order dated 20.07.2023 and further an application moved by her mother for taking her into her custody, was rejected by order passed by the Child Welfare Committee on 23.08.2023.
By means of a supplementary affidavit filed by the revisionist an order passed by the appellate court on 31.10.2023 in an appeal preferred against the order dated 23.08.2023 whereby the appeal was dismissed on the ground that the children court had no jurisdiction to hear the same, has also been challenged in the criminal revision.
The facts of the case are that Pradeep Saxena lodged an FIR against Soni Saxena and several others with the allegations that he got married to Soni Saxena about 20 years ago and that she stayed in a conjugal relationship with him for 12 years and gave birth to four children. Thereafter she deserted him and started living with one Monu s/o Payarelal @ Ram Kishan along with their four kids. About 20 days ago his younger daughter aged 14 years was sold off to one Saurabh s/o Ramesh Lal with the assistance of co-accused persons.
It is alleged in the FIR that Saurabh is aged 35 years and his daughter is merely 14 years. When the first informant tried to contact the co-accused Manorama, she said that his daughter has been sold off and he may have his share in the money.
The FIR case was lodged on 13.07.2023. The statement of the victim girl under section 161 Cr.P.C and other witnesses were recorded. She was put to medical examination and was found aged about 16 years. The victim was produced before the Special Judge, POCSO Act, and the Court ordered her to be produced before the Child Welfare Committee. Before the Child Welfare Committee, she stated that she wanted to accompany her mother-Soni Saxena and Vinay Saxena.
The Child Welfare Committee considered the fact that Soni Saxena is named as an accused and Vinay Saxena is not her father, therefore it will not be proper to send her with them and directed to lodge her in a juvenile home. The victim girl sent an application on 24.07.2023 through Superintendent, Women Protection Home, with a prayer that she desired to stay with her mother-Soni Saxena. The Child Welfare Committee considered the application and declined her to be handed over to her mother, giving detailed reasons as mentioned in the impugned order.
This order refusing her custody to her mother was passed on 23.08.2023. She challenged the same by filing a Criminal Appeal. The appellate court dismissed the appeal holding that it has no jurisdiction to hear the challenge to the order passed by the Child Welfare Committee. The appellate court expressed an opinion that such orders can only be challenged before the Court of District Magistrate, as provided in section 27(10) of the Juvenile Justice Act, 2015.
The Court noted that,
The appellate court seems to have passed the order in the light of the provisions of section 27(10) of the J.J Act, 2015. Section 27 deals with the Constitution of the Child Welfare Committee, the qualifications of a person as regard eligibility of the person to be appointed as a member of a Committee, disqualifications, the tenure of the members, the procedure for inquiry as regard termination of the members etc Section 27(10) of the J.J Act, 2015 empowers the District Magistrate to entertain any grievance arising out of functioning of a Committee.
This section further empowers the affected child or any one connected with the child, as the case may be, to file a complaint before the District Magistrate for the purpose that he may take suitable action as regard the complaints or the grievances which an affected person may have against the Committee. These provisions definitely do not deal with legal challenges to the order passed by the Committee. An aggrieved person can challenge the order passed by the Child Welfare Committee under section 101 of the Juvenile Justice Act, 2015.
The Court observed that,
In the case, the Child Welfare Committee refused to release the victim-girl in care and custody of her mother for reasons which have been elaborately dealt with in the impugned order dated 23.08.2023. 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 above, I find it appropriate to set-aside the order passed by the appellate court and remand the matter for decision afresh, according to law.
Therefore, the Court disposed of the revision with a direction to the appellate court to adjudicate the matter of custody of the victim, according to law and the order dated 31.10.2023 passed by the appellate court is hereby set-aside. The appellate court is expected to decide the appeal expeditiously.