Breaking: Writ Of Habeas Corpus Not Maintainable Against Judicial Order Of Magistrate /CWC Sending Minor Victim To Children Prot
Breaking: Writ Of Habeas Corpus Not Maintainable Against Judicial Order Of Magistrate /CWC Sending Minor Victim To Children Protection Homes:Allahabad
A Full Bench of Allahabad High Court on Monday held that an order passed by a Judicial Magistrate
or Child Welfare Committee sending victim to women protection homes/child care homes cannot
be challenged or set aside in a writ of habeas corpus. Subsequently, the Bench also observed that
the detention of a corpus in such child care homes cannot be treated as an illegal detention.
Full Bench comprising of Justice Siddhartha Varma, Justice Mahesh Chandra Tripathi and Justice
Sanjay Yadav was dealing with the reference in a habeas corpus petition seeking directions on
Superintendent of Children Home (Girl) to release the minor girl namely Anchal, aged 17 years, who
was allegedly illegally detained in the Children Home.
Also Read - Action Should Be Taken Against Investigating Ocer Who Leaks Private Data Of
Accused To Third Parties : Karnataka High Court
The following three issues were framed to be decided by a larger bench:
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?
2. Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child
Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?
Also Read - Inexplicable and Tragic – Bombay High Court Delivers Judgement on Uncontested
Petition Pending For 31 Years
3. Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the
welfare and safety of child in need of care and protection is the legal responsibility of the
Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to
Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is
legally valid or it requires a modied approach in consonance with the object of the Act ?
About the Reference
An FIR was lodged by Anchal's mother alleging that her minor daughter left the house on 15th
February 2020 with the help of one Arjun and his family. When Anchal was recovered on 4th March
2020, her statement under sec. 161 CrPC was recorded wherein she alleged that she left the house
out of frustration as she was beaten up by her mother and had then gone to the house of her friend,
Arjun. It was also alleged that she did so out of her own free will. These statements were reiterated
by her in the statement under sec. 164 CrPC.
When she was produced before the CJM, Saharanpur on 13th March 2020, the police submitted
that as per her High School Certicate, her age was 17 years and 20 days and therefore suitable
order must be passed in regards to her custody. Subsequently, she was sent to Child development
home by the learned CJM.
On being produced before the Child Welfare Committee on the directions of CJM, order was passed
for keeping her in the Children Home (Girl). The present habeas corpus petition was led on being
aggrieved by the said order.
According to the petitioner, it was contended that once her custody was denied by her parents, she
cannot be forced to be sent to Children Home against her wishes. However, the learned AGA
opposed the petition by submitting that the petition was not maintainable as the impugned order
was passed pursuant to the order of the Magistrate and the judicial order, right or wrong cannot be
questioned/assailed in petition seeking writ of habeas corpus.
The Division Bench therefore observed that if the detention in custody is as per judicial orders
passed by a Judicial Magistrate or a court of competent jurisdiction, the writ of habeas corpus
would not be maintainable. However after observing that the position was contradicting as held in
various judgments, the Division Bench referred the issues to be dealt by a larger bench.
Observation of the Full Bench
On the issue of elopement of minor girls and child marriages
The bench after hearing both the parties considered it necessary to make certain observations on
ancillary issues, apart from the main issues framed, dealing with cases of elopement of minor girls
and their recovery after which they are sent to Children Homes.
Observing that there was a rise in number of habeas corpus petitions being led by the
parents/guardians or alleged husband for production of their wards or wife, who leave their
parental houses in "Run away Marriages", the Bench opined that such parents go through agony
whereas the couples are on the run with husband being accused of kidnapping and/or rape.
Therefore, according to Bench, in such cases the Courts are required to ensure that the person
whose production is sought is not illegally detained.
On perusal of Hindu Marriage Act and Child Marriage Restraint Act, 1929, the Bench observed that:
"There appears to be a rationale and public policy in the Legislature not making marriages
solemnized in breach of the statutory age, as prescribed under the Hindu Marriage Act and the
Child Marriage Restraint 18 Act, void or voidable. The Legislature was conscious of the fact that if
such marriages performed in contravention of the age restriction, are made void or voidable it could
lead to serious consequences and exploitation of the women, who are vulnerable on account of
their social and economic circumstances. Both the Acts are aimed to discourage performance of
such marriages by making them punishable with imprisonment and ne, while recognizing the
necessity of protecting marriages performed even though in contravention of the prescribed age as
valid and subsisting."
On maintainability of writ of habeas corpus against judicial order passed by Magistrate or Child
Welfare Committee
While analyzing various provisions of the Juvenile Justice Act, the Court observed that the Act is a
pro child legislation providing for all remedial measures of rehabilitation and care to a child in need
of care and protection. However, the Court claried that in cases where the corpus is sent to
children homes arbitrarily, then the situation may be looked into in appeal or revision.
The Court observed that sec. 37 of the Act clearly provides that the Committee on being satised
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 the Child Welfare Ocer and
taking into account the child's wishes in case the child is suciently mature to take a view, pass
one or more of the following orders. Therefore, according to the Bench, the framers were conscious
to take due care of child's wishes where the child is suciently mature to take a view.
"Therefore, in such situation it cannot be presumed that in case the corpus is in Women
Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither
without jurisdiction nor illegal or perverse, keeping in mind the provisions of the J.J. Act, the
detention of the corpus cannot be said to be illegal and in case the petitioner is aggrieved by the
order of the Child Welfare Committee, or the Magistrate, the petitioner is at liberty to take
recourse of remedy of an appeal or revision provided under Sections 101 and 102 of the J.J. Act."
The Court held.
Concluding that the writ of Habeas Corpus is not maintainable against the judicial order or an order
passed by the Child Welfare Committee under the Act, the Court also observed that in the present
case the age of the corpus was 17 years according to the High School Certicate and therefore
once it is found that the corpus is a child within the meaning of sec. 2(12) of the Act, she would fall
within the category of child in need of care and protection.
"Once the order passed by the Committee placing the petitioner corpus in protection home would
be within its power conferred by Section 37 of the J.J. Act then it cannot be presumed that the
said order is without jurisdiction, illegal or perverse, keeping in mind the provisions of the J.J. Act
and the detention of the corpus cannot be said to be illegal." The Court observed at the outset.
The Court also went ahead to observe that once corpus is minor and the girl had refused to go with
her parents, then in such situation arrangement has to be made. "Her interest is paramount and
before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in
mind. The wish of minor and the wish/desire of girl can always be considered by the Magistrate
concerned/Committee and as per her wishes/desire further follow up action be taken in
accordance with law under the J.J. Act." The bench held.
Concluding the observations, the Bench thus observed:
"Thus, it is evident 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. Suce to indicate that an illegal or irregular
exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare
Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by
way of challenging the legality, validity and correctness of the order by ling an appropriate
proceeding before the competent appellate or revisional forum under the statutory provisions of
law but cannot be reviewed in a petition seeking writ of habeas corpus."
The Bench therefore answered the three issues in the following manner:
Answer 1: 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.
Answer 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare
Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection
Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention.
Answer 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the
legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must
give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satised
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 Ocer and
taking into account the child's wishes in case the child is suciently mature to take a view, pass
one or more of the orders mentioned in Section 37 (1) (a) to (h).
Click Here To Download Judgment
1
A.F.R.
Reserved on 10.02.2021
Delivered on 08.03.2021
Case :- HABEAS CORPUS WRIT PETITION No.362 of 2020
Petitioner :- Km. Rachna and another
Respondent :- State of U.P. and 4 others
Counsel for Petitioner :- Avinash Pandey,Amicus,Sri Shagir
Ahmad Counsel for Respondent :- G.A.,J K Upadhyay
Hon'ble Sanjay Yadav,J.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Siddhartha Varma,J.
(Delivered by Hon'ble Mahesh Chandra Tripathi, J.)
1. Heard Sri Saghir Ahmad, learned Senior Advocate/Amicus
Curiae and Sri Manish Goyal, learned Additional Advocate
General, assisted by Sri Amit Sinha and Sri J.K.Upadhyay,
learned Additional Government Advocates for the State of U.P.
2. This writ petition has been listed before us in view of
reference made by a Division Bench of this Court, considering
the various provisions of the Juvenile Justice (Care and Protection
of Children) Act 20151 and the law laid down by various Courts.
While referring the case to Hon'ble the Chief Justice to constitute
a larger Bench, the Division Bench framed following issues to be
decided by the larger Bench:-
“(1) Whether a writ of habeas corpus is maintainable against
judicial order passed by the Magistrate or by the Child W the elfare
Committee appointed under Section 27 of the Act, sending the
to Wvictimomen Protection Home/Nari Niketan/Juvenile Home/Child
Care Home?;
(2) Whether detention of a corpus in Women Protection
Home/Nari Niketan/Juvenile Home/Child Care Home pursuant
to an order (may be improper) can be termed/viewed as an illegal
detention?;
and
(3) Under the Scheme of the Juvenile Justice (Care and
Protection of Children) Act, 2015, the welfare and safety of child in need of
care and protection is the legal responsibility of the Board/Child
WCommittee and as such, the proposition that even a minor elfare
cannot be sent to Women Protection Home/Nari Niketan/Juvenile
Home/Child Care Home against his/her wishes, is legally valid or it
requires a
1. J.J. Act
Page 1 / 52
TAGS ALLAHABAD HIGH COURT JUVENILE JUSTICE ACT CHILD WELFARE COMMITTEE HABEAS CORPUS
MINOR VICTIM ILLEGAL DETENTION JUSTICE MAHESH CHANDRA TRIPATHI JUSTICE SIDDHARTHA VARMA
JUSTICE SANJAY YADAV
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Action Should Be Taken Against Investigating Ocer
Who Leaks Private Data Of Accused To Third Parties :
Karnataka High Court
SHARE THIS -
Mustafa Plumber 14 March 2021 9:58 AM
Karnataka High Court
In a signicant verdict, the Karnataka High Court has held that an investigating ocer has no right
to disclose the private date seized from the smartphones or electronic gadgets of an accused to a
third party, without the written permission of the concerned court.
An investigating ocer who leaks such private data to third party should be proceeded against for
dereliction of duty or delinquency, the High Court added.
The Court said that use of such data data retrieved during the course of investigating would not
amount to violation of the Right to Privacy, as it is covered under the exceptions given in the KS
Puttaswamy judgment(which held right to privacy a fundamental right).
However, in no case,such details or data can be provided by the investigating ocer to any third
party during the course of investigation without the written permission of the court, which is seized
off the matter.
"The responsibility of safeguarding the information or data which could impinge on the privacy of
the person will always be that of the investigating ocer, if the same is found to have been
furnished to any third party the investigation ocer would be proceeded against for dereliction of
duty or such other delinquency as provided", a single bench of Justice Suraj Govindaraj held.
Justice Suraj Govindaraj was hearing a petition led by Virendra Khanna accused in the infamous
sandalwood drug case, who challenged the order passed by the Special NDPS Court dated 14-09-
2020 by which it directed the petitioner to cooperate for unlocking his mobile phone seized by the
police as illegal and abuse of process of law.
Search warrant necessary to search smartphones, laptops, email accounts etc
Importantly, the Court held that a search warrant is necessary for the examination of a smartphone,
laptop or email account of an accused. An accused cannot be constrained to disclose the
password/passcode of his gadgets or accounts through a mere order of a trial court to cooperate
with the investigation.
The Court laid down the procedure for examining smart phones or email accounts :
• It would be required for the prosecution to approach the Court to seek a search warrant to
search the smartphone and or e-mail account. Once a search warrant is issued, it is up to the
accused to provide the password, passcode etc.
• The investigating agency could also serve a notice on the accused indicating that in the
event of the accused not furnishing the said password, passcode, biornetrics etc., an adverse
inference would be drawn against the accused as regards the aspects notied in the said
notice. The accused can then, in order to avoid the the adverse inference being drawn, furnish
the password, passcode or biometrics to the authorities.
• In the event of the accused or any other person not providing the password, passcode or
biometrics, on an application made by the prosecution, the court could direct the service
provider, manufacturer of smartphone and/or e-mail service provider, to open or unlock the
smartphone and/or email account to enable access to the said smartphone and/or email
account.
• In the event of the manufacturer and the service provider not facilitating the opening of the
smartphone, ernail account or computer equipment, then the Court on an application being
led in that regard permit the Investigating Ocer to hack smartphone and/or email account.
• The Investigating agency would be empowered to engage the services of such persons as
may be required to hack into the smartphone and or e-mail account and make use of the data
available therein, which would be akin to breaking open a lock or door of the premises when
the accused were to refuse to co-operate with the Investigating ocer and open the door of
locked premises.
• In the event of the investigating agency is unsuccessful in hacking into the smartphone and
or the e-mail account and during the course of such a procedure, if the data on the
smartphone and or the e-mail account being destroyed then, the Investigating
agency/prosecution would be free to rely upon the notice by which the accused was warned of
adverse Inference being drawn.
In the instant case, the Court set aside the trial court's order which asked the accused to furnish the
password while directing him to cooperate with the investigation. The Court said that the
investigating ocer will have to seek a search warrant as per the above procedure to examine the
smartphones/email accounts.
Petitioner's arguments
Senior Advocate Hashmath Pasha appearing for the petitioner submitted that insisting the
petitioner to unlock his mobile phone which contains his personal information is violative of Right
Further it was argued that there is no specic law enabling the taking away of his right to privacy or
for a direction to be given by any court either to give password of his mobile or to unlock the same
and further use of the data contained in his mobile for the purpose of investigation.
Moreover, since the right to privacy is recognised as a fundamental right under Article 21 off the
Constitution, to take away this fundamental right, even off an accused there must be a law enacted
by Parliament and the Law must meet the test of Article 21 as laid down in Maneka Gandhi''s case,
ie it must be just fair and reasonable not illusory.
Prosecution opposed the plea:
The application came to be lled only because the Petitioner did not divulge the passwords. If the
Petitioner had divulged the password,, there would have been no requirement to le the Application.
The order directing the Petitioner to furnish the password does not violate any of his rights under
Article 20(3) off the Constitution of India and Section 161(2) off the Code of Criminal Procedure,
1973; Article 21 of the Constitution of India.
Court ndings:
The court noted that today technology has become all-pervasive. A telephone which was used in
the past for communication now called a landline has given way to sophisticated instruments like
smartphones which have computing powers probably thousand times more than that off
computers off 90''s leading to the mobile phone or a smartphone becoming the central device for
running the affairs of the person.
It added :
"The smartphone is being used today for various activities,, including sending messages,
conversing on social media like WhatsApp,, Facebook,, Twitter,, Instagram, Telegram, Signal etc,
sending and receiving emails from various accounts be their personal or ocial.Usage of the
smartphone for the purpose of accessing the internet browsing world wide web etc.. carrying out
online transactions, online purchases either by internet browser or through specied and specic
applications, storage of photographs, documents,, retrieval of the documents stored in the cloud or
on a remote server etc the list could go on and on. Essentially today, a smartphone in many cases
has replaced the laptop, which has replaced the oce and the smartphone by itself is an oce for
several persons."
Following which the court held that "The Court cannot per se issue any directions to the accused to
furnish the password, passcode or Biometrics and direction to cooperate. The gathering of
information and/or evidence mode and methodology of investigation is in the ex-facie domain of
the Investigation ocer".
Coming to the contention raised by the petition about right to privacy, the bench said "Once the
investigating agency has an access to a electronic equipment more particularly smartphones
and/or laptops the investigating ocer has a free access to all data not only on the said equipment
but also any cloud service that may be connected to the said equipment, which could include
personal details, nancial transactions, privileged communications and the like."
It added:
"The rules which are applicable to physical document where a particular document could be
classied as a privileged communication and or strictly private and condential cannot apply to
data which is stored on a smartphone or any other electronic equipment since once an
investigating ocer has an access to the said smartphone, electronic equipment or email account
he would have complete access to the data."
The court opined:
"Though such data may not be incriminatory may be very private or secret to the person or such
data could incriminate the said person in any particular offence. The use of such data during the
course of investigating would not amount to violation of the Right to Privacy and would come
within the exceptions carved out in the Justice Puttaswamy's case. However, the disclosure making
public or otherwise in court proceedings would have to be determined by the concerned judge by
passing a judicial order.
The court held "In no case could such details or data be provided by the investigating oce to any
third party during the course of investigation without the written permission of the court seized of
the matter. The responsibility of safeguarding the information or data which would impinge on the
privacy of the person will always be that of the investigating ocer, if the same is found to have
been furnished to any third party the investigation ocer would be proceed against for dereliction
of duty or such other delinquency as provided.
Justice Govindaraj also held that "By providing off password, passcode or biometrics, there is no
oral statement or a written statement being made by the accused like the Petitioner herein,
therefore it can not be said to be testimonial compulsion".
"A direction to provide a password, passcode, biometrics would not amount to testimonial
compulsion. It is only in the nature of a direction to produce a document. Mere providing access to
a smartphone or e-mail account would not amount to self incrimination since it is for the
investigating agency to prove its allegation by cogent material evidence", the Court held.
Polygraph Test
The bench also set aside the order dated September 23, 2020 directing the petitioner to undergo
polygraph test. It said "An application if any for such polygraph test has to be served on the said
person on whom the polygraph test is to be administered, as also on the lawyer of the said person
if so appearing. The effect and impact of the polygraph test and any answers given during the
conduct of the polygraph test has to be clearly made known to the said person. The consent in
writing to be obtained from such a person before directing the administration of the polygraph test."
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It added "Mere silence of the said person would not amount to consent on behalf of such person. If
a person were to refuse the administration of polygraph test, no such polygraph test could be
administered and even if administered, the result of the said test would be void and cannot be
considered by a Court of Law."
Accordingly, the court held "I am off the considered opinion that the trial Court ought to have taken
into consideration the decision off the Apex Court in Sellvii''s ase and once the trial Court had been
informed and/or it was brought to the notice off the trial Court that on account off the decision of
the Hon''blle Apex Court a polygraph test could not be conducted without a consent off the person
who has to be subjected to such a test, the trial court ought to have recalled its order rather than
dismissing the same."
Also Read(another report from the same judgment) : Karnataka High Court Issues Guidelines For
Search Of Smartphones, Laptops, Electronic Gadgets, Email Accounts Etc
Also Read(another relevant decision by the same judge) : Investigating Agency Cannot Retain
Username/Password Of Accused Person's Social Media Platform: Karnataka High Court
Click here to read/download the judgment