Ramesh Chand S/o Munshi Lal vs State of Rajasthan

The present petition has been filed by father of the detenue

Arti with the grievance that they are residing in Alwar and his

daughter Arti is till a minor and has not attained 18 years of age

(age of majority) and she left home on 01.10.2017 to buy some

grocery but when she did not return back to home, it revealed to

the petitioner that she has been abducted by the respondent No.5

who took away the detenue with him, who as alleged and also

reveals from the case diary is married and having two children

from the wedlock.

Immediately after this fact came to his notice, FIR

No.232/2017 was registered at his instance at Police Station

Mahila Thana, Alwar on 01.10.2017 for offence u/Sec.363 IPC and

Sec.16 & 17 of POCSO Act implicating respondent No.5 as one of

the accused but when no action was taken by the police authority

to his satisfaction and the detenue also was not recovered, no

option was left with him but to approach this court by filing instant

habeas corpus petition.

Notices were issued by this court on 25.10.2017 and the

respondents were called upon to file their response and also to

produce the corpus before the court.

The corpus was recovered on 18.12.2017 and produced

before the Child Welfare Committee, Alwar but since the matter is

pending before this court, on the application being filed, the

Investigating Officer took her custody and produced her before the

court today.

The case diary of the matter, produced before the court,

reveals that the detenue is still a minor and according to the

School Roll Register, she has been a student of Perfect Public

School where her date of birth has been recorded as 02.08.2003

and as per present stage of investigation, she is still a minor,

which is always subject for enquiry to be made by the competent

authority.

We put specific question to the detenue as to with whom she

wants to stay, she is not inclined to go with her parent who are

present in the court and has shown her inclination to go with the

fifth respondent against whom material has come on record during

the course of investigation that he is already married and having

two children from the wedlock and against whom FIR has been

lodged by the petitioner on whose behalf the marriage certificate

has been produced to show that he has solemnized marriage with

the detenue on 12.10.2017 and got their marriage registered

under the seal and signature of the Marriage Registration Officer,

Ghaziabad.

In the given facts & circumstances what is being contended

is subject to further investigation but from the material on record,

the detenue is still a minor and her consent may not be that

material at the same time, since she is not inclined to go with her

parents, who are her natural guardian, they have first right to

take her custody but since she is rigid and has not shown her

inclination to go with the parents, keeping all these facts into

consideration, a question came up for our consideration as to how

the welfare of detenue could be protected in view of the mandate

of law under the Juvenile Justice (Care & Protection of Children)

Act, 2000.

In the present case, the detenue named Arti, as per the

prima facie evidence which came on record, is still a child and her

welfare is to be decided by the Child Welfare Committee. It is

informed to this court that in the State of Rajasthan, the Child

Welfare Committee has been constituted at every District Level, as

per S.29 of the Act, 2000. Chapter-III of the Act, 2000 provides a

complete mechanism from constitution of the Committee and

procedure which is to be followed for examining and adjudicating

the matter for welfare of the child and S.30 of the Act, 2000

specifically states that a child in need of care & protection may be

produced before the Child Welfare Committee for being placed in

safe custody or otherwise when the Committee is not in session

before an individual member. As per the record of investigation,

the detenue Arti appears to be less than 18 years of age and is a

child.

After hearing counsel for the parties, we find that the instant

habeas corpus petition deserves to be disposed of by passing the

following directions:-

(a) THAT the detenue/child - Arti shall be produced

before the Child Welfare Committee, Alwar who is

having jurisdiction in the matter;

(b) THAT the Committee shall determine the age of

detenue/child - Arti, as per the provisions of R.12(iii)

of the Juvenile Justice (Care & Protection of Children)

Rules, 2007;

(c) THAT after determination of age of the

detenue/child - Arti, in case she is found to be a child

less than 18 years of age, the Committee shall pass

necessary orders regarding her care & protection;

(d) THAT in case the committee finds that the

detenue/ child - Arti is more than 18 years of age on

the date of passing of the order, the Committee may set the detenue/child free and she may be at liberty to

go and reside according to her own wishes;

(e) THAT the detenue/child - Arti shall be produced

before the Child Welfare Committee, Alwar within a

period of six days from today and the Committee may

decide the age of the detenue/child after affording

opportunity to all the concerned parties including her

parents and pass necessary directions within a period

of four weeks from the date of production of the

detenue/child; and

(f) THAT it is informed that there is no such Balika

Grah in district Alwar and whenever the children are

taken into custody, they are lodged in Mother Teresa

Home, Kaidalganj Road, Alwar. It is, therefore, directed

that till the detenue/child - Arti is produced before the

Committee and directions are passed by the

Committee regarding interim arrangements during the

period of inquiry, the detenue/child shall continue to

remain lodged in the Mother Teresa Home, Kaidalganj

Road, Alwar.

Let the detenue/child Arti may be produced before the Child

Welfare Committee on or before 25.12.2017 and the parents of

the detenue/child namely Arti, who are represented by their

respective counsel, may be informed and are at liberty to appear

before the Committee who shall ensure their presence and

proceed further in terms of the directions, indicated above and the

Committee may take its decision independently without being

influenced/inhibited by the observations made in accordance with

law.

With the directions, referred to supra, the instant habeas

corpus petition stands disposed of.