Smt. Muskan Malik and Another v. State of U.P. and 3 Others

Court No. - 81 Case :- HABEAS CORPUS WRIT PETITION No. - 936 of 2023 Petitioner :- Smt. Muskan Malik And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sajiya Parveen Counsel for Respondent :- G.A. Hon'ble Mrs. Jyotsna Sharma,J.

¶1Heard Ms. Sajiya Parveen, learned counsel for the petitioners and Sri L.D. Rajbhar, learned AGA for the State.

¶2In this case, respondent no. 4-Kanchi (father of petitioner no. 1-Smt Muskan Malik, corpus) lodged an FIR, naming petitioner no. 2-Guddu and two other persons as accused.

¶3Learned AGA submits that during the course of investigation, the petitioner no. 1-Smt Muskan Malik (corpus) was recovered. Her statements were recorded and she was produced before the Child Welfare Committee, Bulandshahar. From the order passed by the Child Welfare Committee dated 05.10.2023 (copy whereof is taken on record), it is clear that she expressed her willingness to go with her parents and therefore she was allowed to accompany her father. She was found minor.

¶4It is observed that in case the petitioner is not satisfied with the order passed by the Child Welfare Committee, he can challenge the order under sections 101 or 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, as the case may be.

¶5The High Court of Allahabad in judgment passed in Habeas Corpus Writ Petition No. 362 of 2020 (Km. Rachna and another vs. State of U.P. and 4 Others) delivered on 08.03.2021, has clearly held in para no. 78 that a writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Relevant Question No. 1 was framed, which is as below:- "Question No.1 : "(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?" Answering to Question no. 1, the High Court held as below:- "Answer : If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus." The court further held that even an illegal or irregular exercise of jurisdiction by the Magistrate or by the C.W.C., cannot give cause of action for a writ of habeas corpus.

¶6As the corpus is in custody of her father, hence her detention cannot be treated as illegal from any angle. The petition is devoid of substance and is hereby dismissed. Order Date :- 7.11.2023 #Vikram/- High Court of Judicature at Allahabad