# Girish Kumar Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-25
- **Case number:** Criminal Revision No. 1399 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-kumar-revisionist-v-state-of-u-p-ors-49175
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Indian Penal Code, 1860-Sections 363,
366 & 376 - POCSO Act-Legality ofJuvenile was found to be aged about 16
years and 3 months at the time of
occurrence-She got pregnant because of
rape committed on her by her jeeja and
she was unwilling to go with her husbandChild
Welfare
committee
passed
the
impugned order detaining her in Rajkiya
Balgrih-Her institutional custody seems
better than family custody-The Act, 2015
provides vast powers to CWC on the
principles of best interest of a childjuvenile delivered a child , who too is
staying in shelter home-she is a mother
with an infant to take care and she might
be in need of a family support-Hence, the
matter is remanded back to the appellate
court to decide the matter afresh.(Para 1
to 17)

B. When an order is passed of the nature
as is under challenge before this Court,
the appeal shall be entertainable by the
Children's Court and not by the District
Magistrate; the District Magistrate is
empowered to hear appeals only against
the decisions of the Committee relating to
foster care and sponsorship after care.
The order in question does not fall under
this category. The appellate court was
wrong in holding that appeal did not lie
before it.(Para 11)

The revision is disposed of. (E-6)

## Text

1 All. Girish Kumar Vs. State of U.P. & Ors.
69
(2023) 1 ILRA 69
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.11.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 1399 of 2022

Girish Kumar ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sushil Kumar, Mukul Yadav

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Indian Penal Code, 1860-Sections 363,
366 & 376 - POCSO Act-Legality ofJuvenile was found to be aged about 16
years and 3 months at the time of
occurrence-She got pregnant because of
rape committed on her by her jeeja and
she was unwilling to go with her husbandChild
Welfare
committee
passed
the
impugned order detaining her in Rajkiya
Balgrih-Her institutional custody seems
better than family custody-The Act, 2015
provides vast powers to CWC on the
principles of best interest of a childjuvenile delivered a child , who too is
staying in shelter home-she is a mother
with an infant to take care and she might
be in need of a family support-Hence, the
matter is remanded back to the appellate
court to decide the matter afresh.(Para 1
to 17)

B. When an order is passed of the nature
as is under challenge before this Court,
the appeal shall be entertainable by the
Children's Court and not by the District
Magistrate; the District Magistrate is
empowered to hear appeals only against
the decisions of the Committee relating to
foster care and sponsorship after care.
The order in question does not fall under
this category. The appellate court was
wrong in holding that appeal did not lie
before it.(Para 11)

The revision is disposed of. (E-6)
(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Mukul Yadav, learned
counsel for the revisionist and learned
A.G.A. for the State.

2. This revision has been filed
challenging the order dated 11.01.2022
passed by the Child Welfare Committee,
Kasganj and further challenging the order
dated 26.10.2022 passed by the Special
Judge (POCSO Act) in Criminal Appeal
No.7 of 2022 in a matter arising out of
Case Crime No.140 of 2022, under
sections- 363, 366, 376 I.P.C., Police
Station- Sunngarh, District- Kasganj.

3. The relevant facts giving rise to this
revision are as below:-

An F.I.R. was lodged by father of
the victim alleging abduction of his
daughter; the victim was recovered and was
directed to be produced before the Child
Welfare Committee; the Child Welfare
Committee
passed
an
order
dated
11.01.2022 simultaneously rejecting four
applications, one moved on behalf of
mother of the victim and second moved on
behalf of the married sister of the victim
namely Islanti and two applications moved
by the victim herself. The facts and
circumstances of the case as put before the
Child Welfare Committee indicated that the
victim became pregnant with the child of
her jeeja Om Pal, husband of her real sister
Islanti. It may be noted that one of the
70 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant was Islanti, wife of Om Pal; the
girl was married of to one Ghanshyam by
her parents; she did not stay with her
husband; instead went with her jeeja and
her real sister where she got pregnant; the
Child Welfare Committee observed that
there were two applications from the side
of
victim
herself,
one
expressing
willingness to go with her parents and the
other expressing willingness to go with her
sister
and
jeeja.
Taking
all
the
circumstances into consideration, the Child
Welfare Committee, found it fit to detain
her in the Rajkiya Balgrih Swaroopnagar,
Kanpur by order dated 11.01.2022.

4. The appeal preferred by her father
against the above order was dismissed,
inter-alia on the assumption that legally
appeal could have been filed before the
District Magistrate only and that the
children court had no jurisdiction to hear
the appeal.

5. Section- 101 of the Juvenile Justice
Act, 2015 is as below:-

"(1) Subject to the provisions of
this Act, any person aggrieved by an order
made by the Committee or the Board
under this Act may, within thirty days
from the date of such order, prefer an
appeal to the "Children's Court", except
for decisions by the Committee related to
Foster Care and Sponsorship After Care
for which the appeal shall lie with the
District Magistrate."

6. It is quite clear from this provision
of law that appeal shall lie to the District
Magistrate with respect to decisions by the
Child Welfare Committee relating to foster
care and sponsorship after care only. The
appeal in respect of other orders passed by
the Child Welfare Committee shall lie to
the 'Children's Court' within 30 days from
the date of order. Before analysing this
provision, it will be appropriate to peruse
the order passed by the Child Welfare
Committee to decide upon whether this
order falls in the category where the appeal
may lie to Children's Court or in the
category where appeal shall lie to District
Magistrate.

7. Following facts are not disputed
that the victim girl was produced before the
Child Welfare Committee in pursuance of
an order passed by Judicial Magistrate,
Kasganj in a case arising out of a matter in
Case Crime No.140 of 2021, under
sections- 363, 366, 376 I.P.C., Police
Station- Sunngarh, District- Kasganj.

8. From perusal of the impugned
order, it seems that the victim was put to
counselling
by
the
Child
Welfare
Committee and she gave a statement that
she was married of to one Ghanshyam
against her wishes by her father in July,
2021; she did not like him therefore, she
returned to her parents place; meanwhile,
she developed illicit relations with her jeeja
Om Pal and eloped with him to a place in
Punjab where she stayed with him for 15
days and also called her sister and all the
three lived together peacefully; she became
pregnant with the child of her jeeja and
now she wanted to stay with him only; the
Child Welfare Committee noted that her
natural mother Meera Devi moved an
application for releasing the victim in her
custody wherein she alleged that her
(victim's) jeeja enticed her away though he
already had four kids from her elder sister
and that the victim is minor, not able to
understand the consequences of her act; the
Child Welfare Committee also noted that
her real sister, Islanti wife of Om Pal also
moved an application to get her released
1 All. Girish Kumar Vs. State of U.P. & Ors.
71
into her custody; in her application, Islanti
imputed certain allegations against her own
father stating that her father got the victim
married of to a person after getting some
money in return; victim took shelter in her
house and was staying with them out of her
own free will and desire at Punjab and that
a false F.I.R. had been lodged by her father;
it was also alleged therein that she was not
a minor and that she wanted to go with her
sister and jeeja only. The Child Welfare
Committee came to conclusion that the
victim is a minor aged about 16 years and 3
months and that she got pregnant because
of rape committed on her by her jeeja and
she was unwilling to go with her husband
Ghanshyam; in these circumstances, the
impugned order detaining her in a Rajkiya
Balgrih was passed.

9. This revision has been filed on
behalf of the father of the victim on the
ground that because she is minor she
should have been released in custody of her
parents/revisionist.

10. I went through the material on
record in the light of submissions before
this Court. As per scheme of the Juvenile
Justice Act, the Child Welfare Committee,
irrespective of any other law, has power to
deal exclusively with all proceedings
relating to 'children in need of care and
protection' under Section-29 of the Juvenile
Justice Act, 2015. The functions and
responsibilities
of
Committee
include
taking cognizance of and receiving the
child produced beformca prospectuse it,
conducting inquiry on all issues relating to
safety and well being of a child as well as
ensuring
care,
protection,
appropriate
rehabilitation
and
most
importantly
restoration of 'children in need of care and
protection' (Section-30 of the Juvenile
Justice Act, 2015). Section-37 of the
Juvenile Justice Act, 2015 empowers the
Committee, after being satisfied through an
inquiry,
consideration
of
social
investigation report submitted by Child
Welfare Officer and taking into account the
child's wishes, in case the child is
sufficiently matured, to take a view and
pass one or more of following order,
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) ........;

(h) .........

10. On perusal of the above
provisions of Juvenile Justice Act, 2015, it
is
demonstrated
that
Child
Welfare
Committee is given vast powers on the
principles of best interest of a child, a
thread which goes through the whole of the
scheme of the Juvenile Justice Act, 2015. It
has been specifically provided by the
section-3 of the Juvenile Justice Act, 2015
72 INDIAN LAW REPORTS ALLAHABAD SERIES
that
Central
Government,
State
Governments,
the
Board
and
other
agencies, as the case may be, while
implementing the provisions of the Act,
shall be guided by the fundamental
principles which include principles of best
interest, principle of family responsibilities,
the principle of safety, the principles of
repatriation and restoration and several
others.

11. The provisions of law as aforesaid
are being reproduced here with the twin
object; firstly, that when an order is passed of
the nature as is under challenge before this
Court, the appeal shall be entertainable by the
Children's Court and not by the District
Magistrate;
the
District
Magistrate
is
empowered to hear appeals only against the
decisions of the Committee relating to foster
care and sponsorship after care. The order in
question does not fall in this category. The
appellate court was thus wrong in holding
that appeal did not lie before it. Therefore, the
impugned order is liable to be set-aside;
secondly, it may be noted that when a child in
need of care and protection is lodged in any
shelter home, it is a measure of temporary
nature; the Child Welfare Committee is fully
empowered to take a decision where it is
found no more necessary to detain her. It may
be noted that legally a child in need of care
and protection may be detained for a further
period even if he/she has attained majority if
it is found that it will not be in his/her best
interest to release him/her immediately.

12. It is brought to notice of this
Court that in the meanwhile, the revisionist
has delivered a child, who too is staying
with her in the shelter home.

13. Legally the Child Welfare
Committee is fully empowered to take a
fresh
decision
in
respect
of
her
detention/release
in
view
of
new
development that now she is a mother with
an infant to take care and that she might be
in need of a family support. Since this case
is being remanded to appellate court for
deciding the matter afresh, hence before
any decision as to her continued detention
or release is taken by the appellate court,
extreme care shall be taken with regard to
her
and
her
child's
safety,
welfare,
protection and rehabilitation. The Child
Welfare Committee has a very significant
role to play in such matters and is entrusted
with a responsibility to take measures to
achieve the aim and object of the Juvenile
Justice Act, 2015. Hence, the appellate
court may, in its wisdom call for a detailed
report from the Child Welfare Committee
before deciding the appeal. No doubt the
Court is faced with peculiar facts and
circumstances in this case. It may fruitfully
be noted that the Court while functioning as
an appellate court under section- 101 of the
Juvenile Justice Act, 2015 is not so much
concerned with legal rights of the parties.
Instead the decision is to be taken in best
interest of the child after anticipating and
weighing all pros and cons. With the above
observations, the matter is remanded to the
appellate court to hear the matter afresh and
pass order after hearing both the sides.

15. The impugned order dated
26.10.2022 is set-aside and the matter is
remanded back. The court concerned is
directed to decide the matter afresh in the
light of observations of this Court as above.

16. Before parting with the matter, a
legal point of general importance needs to
be pointed out. Section- 2(20) of the
Juvenile Justice (Care and Protection of
Children) Act, 2015 defines:- "Children's
Court" means a court established under
the Commissions for Protection of Child
1 All. Ishwar Vs. State of U.P. & Anr.
73
Rights Act, 2005 or a Special Court under
the Protection of Children from Sexual
Offences Act, 2012, wherever existing and
where
such
courts
have
not
been
designated, the Court of Sessions having
jurisdiction to try offences under the Act."

17. It is apparent that wherever a
Special Court under the Protection of
Children from Sexual Offences Act, 2012 is
in existence, such court shall function as
"Children's Court" under the provisions of
Juvenile Justice (Care and Protection of
Children) Act, 2015. This may not be taken to
mean that the jurisdiction under the Juvenile
Justice (Care and Protection of Children) Act,
2015 lies in Special POCSO Court. To say in
plain words, whenever a matter relating to a
"child in conflict with law" or a 'child in need
of care and protection' is taken up or decided
by a competent court that court shall be
referred to as Children's Court. It has come in
my observation that Judges of Special
POCSO Courts functioning as appellate court
in respect to 'child in need of care and
protection' or "child in conflict with law"
wrongly refer themselves as Special Judge,
POCSO Court or even as Additional Sessions
Judge. Its proper designation is "Children's
Court". It is necessary to point out this error
which is being committed by the concerned
courts almost all over the State of Uttar
Pradesh.

18. Registry is directed to circulate this
judgement to all the District Judges of State
of U.P.
----------
(2023) 1 ILRA 73
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.
Criminal Revision No. 1793 of 2018

Ishwar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Madan Singh, Sri Abhinav Tripathi

Counsel for the Opposite Parties:
G.A., Sri Ronak Chaturvedi

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401-Indian
Penal
Code,
1860-Sections
323/34,
304/34,504
&
506-challenge
tosummoning
order
u/s
319
Cr.P.C.-
revisionist was named in the FIR showing
his
complicity
in
the
incident-During
investigation revisionist was exonerated
on the basis of plea of alibi which was
confirmed by the statement recorded of
the
witnesses-But
the
injured/complainant statement u/s 161
Cr.P.C.
and
the
statement
in
her
examination
in
chief,
injured
again
corroborated the allegations of FIR-It is
settled law that the testimony of injured
witness is of higher value and cannot be
ignored-Apex Court held that power u/s
319 Cr.P.C. can be exercised at the stage
of completion of examination in chief and
court does not need to wait till the said
evidence is tested on cross examination
for, it is the satisfaction of the court which
can
be
gathered
from
the
reasons
recorded by the court, in respect of
complicity of some other persons, not
facing the trial in the offence-Learned trial
court rightly recorded its satisfaction
about the complicity of the revisionist and
therefore,
summoned
him-Hence,
no
illegality or infirmity in the impugned
order.(Para 1 to 9)

B. The Apex Court while dealing the
question
"what
is
the
degree
of
satisfaction required for invoking the
power u/s 319 Cr.P.C." held that though
only a prima facie case is to be established
from evidence led before the court not
necessarily tested on the anvil of cross