# Km. Rachna & Anr v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** Habeas Corpus Writ Petition No. 362 of 2020
- **Bench:** Pritinker Diwaker, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-rachna-anr-v-state-of-u-p-ors-45581
- **Pages:** 14

## Headnote

Sri J.K. Pandey, A.G.A.

Parents claimed that minor was enticed by
one Arjun and minor has left with him-Minor
claim that she was beaten by her motherout of frustration she has gone to her
friend's home who is a sister of Arjun-
Magistrate determined her age as 17 years
and directed Child Welfare Committee
directed to keep her in Women protection
home-questions involved-Whether writ of
habeas corpus maintainable against the
judicial order passed by Magistrate or by
Child
welfare
Committee?-Whether
detention of a corpus in women Protection
Home pursuant to an order is an illegal
detention? Matter referred to Larger benchas different views in this context exist. (E-9)

List of Cases cited:-

## Text

_Characters 0–39,868 of 47,535. This is a partial read: ask again with offset=39868 for what follows._

362 INDIAN LAW REPORTS ALLAHABAD SERIES
facing criminal charges. If and when he is
acquitted and the children, still minors, it
would be open to him to make an
appropriate
application,
seeking
their
custody
to
the
court
of
competent
jurisdiction, under the Act, 1890, which
shall be decided in accordance with law,
according
to
the
circumstances
then
obtaining, without being influenced by
anything said here.

18. In the result, this petition fails and
stands dismissed.

19. In totality of the circumstances
obtaining for the present, this Court does
not find it appropriate to grant any
visitation rights to Awadhesh Gautam.
----------
(2020)12ILR A362
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 362 of 2020

Km. Rachna & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Avinash Pandey, Sri Shagir Ahmad,
Amicus

Counsel for the Respondents:
Sri J.K. Pandey, A.G.A.

Parents claimed that minor was enticed by
one Arjun and minor has left with him-Minor
claim that she was beaten by her motherout of frustration she has gone to her
friend's home who is a sister of Arjun-
Magistrate determined her age as 17 years
and directed Child Welfare Committee
directed to keep her in Women protection
home-questions involved-Whether writ of
habeas corpus maintainable against the
judicial order passed by Magistrate or by
Child
welfare
Committee?-Whether
detention of a corpus in women Protection
Home pursuant to an order is an illegal
detention? Matter referred to Larger benchas different views in this context exist. (E-9)

List of Cases cited:-

1. Menu Patel Vs St. of UP, 2015 SCC OnLine All 5892

2. Smt. Neelam Vs St. of U.P. & ors., Habeas Corpus
Writ Petition No.36519 of 2015, decided on 20.7.2015

3. Pushpa Devi Vs St. of U.P. & ors., 1994 HVVD
(All) C.R. Vol. II 259

4. Smt. Raj Kumari Vs Superintendent, Women
Protection, Meerut & ors., 1997 (2) A.W.C. 720

5. Smt. Preeti Nishad through her Husband,
Mahendra Kumar Vs St. of U.P., Habeas Corpus
No.146 of 2015.

6. Rahul Kumar Singh & anr. Vs St. of U.P. &
ors., Habeas Corpus Writ Petition No.47442 of
2015, decided on 15.9.2015

7. Kajal & anr. Vs St. of U.P. & ors., Habeas Corpus Writ
Petition No.3914 of 2018, decided on 22.2.2019

8. Saurabh Pandey Vs St. of U.P., 2019 SCC
OnLine All 4430

9. Smt. Shahjahan Vs St. of U.P. & ors., 9 2015
SCC OnLine All 5224

10. Km. Mona @ Reema Vs St. of U.P., 2014
SCC OnLine All 7099

11. Guria Bhagat @ Guria Rawani Vs St. of
Jhark. & ors., 2013 SCC OnLine Jhar 2149

12. Smt. Himani Vs St. of U.P. & ors., 2013 SCC
OnLine All 13088

13. Akash Kumar Vs St of Jhark. & ors., 2014
(19)
R.C.R.
(Criminal)
816
12 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
363
14. Irfan Khan Vs St. of M.P. & ors., 2016 (3)
MPLJ 449

15. Manish S/o Natvarlal Vaghela Vs St. of Guj.,
Special Criminal Application No.5659 of 2019,
decided on 23.12.2019

16. Shikha Kumari Vs St. of Bih., 2020 CRI. LJ
2184

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This petition has been filed by the
petitioners, seeking a writ of habeas corpus,
commanding
respondent
no.4Superintendent, Children Home (Girl)
District Saharanpur, to release corpuspetitioner no.2-Km. Anchal, who has been
allegedly illegally detained in the Children
Home (Girl) District Saharanpur.

2. Facts of the instant case are that on
16.2.2020, FIR was lodged by Smt. Sudha,
mentioning therein that on 15.2.2020, her
minor daughter Km. Anchal (hereinafter
referred to as 'petitioner no.2-corpus') aged
17 years has been enticed by one Arjun S/o
Rishipal. She has alleged that while leaving
the house, petitioner no.2-corpus had taken
certain ornaments and cash amount. She
has further alleged that the father, mother
and brother of Arjun have helped him in
taking petitioner no.2-corpus. Based on this
FIR, offence under Sections 363 and 366 of
IPC was registered against Arjun, his
parents and relatives.

Later, petitioner no.2-corpus was
recovered on 4.3.2020 and on the same
day, her Section 161 Cr PC statement was
recorded wherein she has stated that as
quite often she was beaten by her mother,
out of frustration, on 15.2.2020, without
informing her family members, she had
gone to the house of her friend, namely,
Km. Rachna-petitioner no.1, sister of
Arjun. She has further stated that she was
never taken away by any one and of her
own free-will, she was living with her
friend. She, however, has refused for her
medical examination. As per High School
Certificate, her age has been found 17
years,
whereas
as
per
Radiological
examination conducted on 6.3.2020, her
age was found about 20 years. In her
statement recorded under Section 164 of Cr
PC on 7.3.2020, she has reiterated that of
her own she had gone to the house of
petitioner no.1 and that nobody had
forcibly taken her. On 13.3.2020, petitioner
no.2-corpus was produced before the Chief
Judicial Magistrate, Saharanpur and it was
submitted by the police that as per High
School Certificate, age of petitioner no.2corpus comes to 17 years and 20 days and,
therefore, suitable order be passed in
relation to her custody. Mother of petitioner
no.2-corpus filed an application before the
Magistrate to the effect that petitioner no.2corpus is minor and, therefore, in the
interest of justice, she be sent to Balika
Vikas Grih/Child Development Home.
After considering all the facts of the case, a
finding was recorded by the Magistrate,
determining the age of petitioner no.2corpus to be 17 years and the Magistrate
has directed for producing her before Bal
Kalyan Samiti/Child Welfare Committee
(hereinafter referred to as 'the Committee')
for issuance of further direction with regard
to the custody of petitioner no.2-corpus.
Pursuant to the order passed by the
Magistrate, petitioner no.-2-corpus was
produced before Committee and the order
was passed by the Committee for keeping
her in Children Home (Girl). Pursuant to
this order, petitioner no.2-corpus is in
Children Home (Girl) Saharanpur.

3. Aggrieved with this order, present
petition has been preferred for issuance of a
364 INDIAN LAW REPORTS ALLAHABAD SERIES
writ of habeas corpus. The main grounds,
which have been raised by the petitioners,
are:

(i) that in 164 of Cr PC statement,
petitioner no.2-corpus has categorically
stated that she was being subjected to
torture
by her
mother
and
brother,
therefore, she left her house;

(ii) that petitioner no.2-corpus
was living happily with petitioner no.1, i.e.
her friend;

(iii) that once the custody of
petitioner no.2-corpus has already been
denied by her parents and petitioner no.2corpus wants to go with petitioner no.1, she
could not have been sent to Children Home
(Girl) and that she has been kept in
Children Home (Girl) against her wish;

(iv) that petitioner no.2-corpus is
not minor and, therefore, she cannot be
kept against her wish; and

(v) that even if petitioner no.2corpus is minor, then also she cannot be
kept in Children Home (Girl) against her
wish.

4. In compliance of the order passed
by the Magistrate, the Committee has
passed
the
order
impugned,
sending
petitioner no.2- corpus to the Children
Home (Girl) and pursuant to this order,
petitioner no.2-corpus is in Children Home
(Girl). It is this order, which has been
challenged by the petitioner before this
Court, seeking issuance of a writ of habeas
corpus on the ground that the detention of
the corpus is illegal and, therefore, she be
set free forthwith. In this regard, reliance
has been placed upon various judgments of
this Court.

5. On the other hand, opposing the
arguments of the petitioners, learned State
Counsel has argued that the writ of habeas
corpus is not maintainable as the order
impugned
has
been
passed
by
the
Committee pursuant to the order of the
Magistrate and the judicial order, right or
wrong, cannot be assailed in a petition
seeking writ of habeas corpus. State
Counsel submits that petitioner no.2 has an
efficacious alternative remedy of filing an
appeal under Section 101 of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as 'the
Act') and the judicial order can only be
challenged before the appellate Court. He
submits that while passing the order
impugned, the Committee has exercised the
power of Magistrate and in view of the
provisions of Section 27 of the Act, for all
purposes, the Committee acts like the
Magistrate. Once the order has been passed
by the Magistrate, it can only be assailed
before the appropriate Court by filing an
appeal. In support thereof, he placed
reliance on the various judgments passed
by this Court.

6. We have heard learned counsel for
the parties and perused the record.

7. Undisputedly, the Committee has
passed the order pursuant to the order dated
13.3.2020 passed
by
the
Magistrate.
Provisions of Section 27 (9) of the Act
makes it clear that while passing such
orders, the Committee exercises the power
of Judicial Magistrate. Section 27 of the
Act reads as under:

"27.
Child
Welfare
Committee.--(1) The State Government
shall by notification in the Official Gazette
constitute for every district, one or more
Child Welfare Committees for exercising
the powers and to discharge the duties
conferred on such Committees in relation
to children in need of care and protection
12 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
365
under this Act and ensure that induction
training and sensitisation of all members of
the committee is provided within two
months from the date of notification.

(2) The Committee shall consist
of a Chairperson, and four other members
as the State Government may think fit to
appoint, of whom at least one shall be a
woman and another, an expert on the
matters concerning children.

(3) The District Child Protection
Unit shall provide a Secretary and other
staff that may be required for secretarial
support to the Committee for its effective
functioning.

(4) No person shall be appointed
as a member of the Committee unless such
person has been actively involved in health,
education or welfare activities pertaining to
children for at least seven years or is a
practicing professional with a degree in
child psychology or psychiatry or law or
social work or sociology or human
development.

(5) No person shall be appointed
as a member unless he possesses such other
qualifications as may be prescribed.

(6) No person shall be appointed
for a period of more than three years as a
member of the Committee.

(7) The appointment of any
member of the Committee shall be
terminated by the State Government after
making an inquiry, if--

(i) he has been found guilty of
misuse of power vested on him under this
Act;

(ii) he has been convicted of an
offence involving moral turpitude and such
conviction has not been reversed or he has
not been granted full pardon in respect of
such offence;

(iii) he fails to attend the
proceedings
of
the
Committee
consecutively for three months without any
valid reason or he fails to attend less than
three-fourths of the sittings in a year.

(8) The District Magistrate shall
conduct
a
quarterly
review
of
the
functioning of the Committee.

(9) The Committee shall function
as a Bench and shall have the powers
conferred by the Code of Criminal
Procedure, 1973 (2 of 1974) on a
Metropolitan Magistrate or, as the case may
be, a Judicial Magistrate of First Class.

(10) The District Magistrate shall
be the grievances redressal authority for the
Child Welfare Committee and anyone
connected with the child, may file a
petition before the District Magistrate, who
shall consider and pass appropriate orders."

8. Further, before entering into the
merits of the case, we feel it appropriate to
refer to some important provisions of the
Juvenile Justice (Care and Protection of
Children) Act, 2015. Sub-section (4) of
Section 1 of the Act reads as under:

"(4) Notwithstanding anything
contained in any other law for the time
being in force, the provisions of this Act
shall apply to all matters concerning
children in need of care and protection and
children in conflict with law, including -

(i)
apprehension,
detention,
prosecution, penalty or imprisonment,
rehabilitation and social re-integration of
children in conflict with law;

(ii) procedures and decisions or
orders relating to rehabilitation, adoption,
re-integration, and restoration of children in
need of care and protection."

Sub-section 14 (iii) (a) of Section
2 of the Act is as under:

"(14) "child in need of care and
protection" means a child--

... ... ...
366 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) who resides with a person
(whether a guardian of the child or not) and
such person--

(a) has injured, exploited, abused
or neglected the child or has violated any
other law for the time being in force meant
for the protection of child"

Sections 29 and 37 of the Act are
as under:

"29. Powers of Committee. (1)
The Committee shall have the authority to
dispose of cases for the care, protection,
treatment, development and rehabilitation
of children in need of care and protection,
as well as to provide for their basic needs
and protection.

(2) Where a Committee has been
constituted for any area, such Committee
shall, notwithstanding anything contained
in any other law for the time being in force,
but save as otherwise expressly provided in
this Act, have the power to deal exclusively
with all proceedings under this Act relating
to children in need of care and protection."

37. Orders passed regarding a
child in need of care and protection.- (1)
The Committee on being satisfied 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 Officer and taking into account the
childs wishes in case the child is
sufficiently mature to take a view, pass one
or more of the following orders, 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
Childrens
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) directions to persons or
institutions or facilities in whose care the
child is placed, regarding care, protection
and rehabilitation of the child, including
directions relating to immediate shelter and
services
such
as
medical
attention,
psychiatric
and
psychological
support
including
need-based
counselling,
occupational
therapy
or
behaviour
modification therapy, skill training, legal
aid,
educational
services,
and
other
developmental activities, as required, as
well as follow-up and coordination with the
District Child Protection Unit or State
Government and other agencies;

(h) declaration that the child is
legally free for adoption under section 38.

(2) The Committee may also pass
orders for--

(i) declaration of fit persons for
foster care;

(ii) getting after care support
under section 46 of the Act; or

(iii) any other order related to any
other function as may be prescribed."

Section 101 of the Act reads as
under:

"101. Appeals.- (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
12 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
367
such order, prefer an appeal to the
Childrens 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:

Provided
that
the
Court
of
Sessions, or the District Magistrate, as the
case may be, may entertain the appeal after
the expiry of the said period of thirty days,
if it is satisfied that the appellant was
prevented by sufficient cause from filing
the appeal in time and such appeal shall be
decided within a period of thirty days.

(2) An appeal shall lie against an
order of the Board passed after making the
preliminary assessment into a heinous
offence under section 15 of the Act, before
the Court of Sessions and the Court may,
while deciding the appeal, take the
assistance of experienced psychologists and
medical specialists other than those whose
assistance has been obtained by the Board
in passing the order under the said section.

(3) No appeal shall lie from,--

(a) any order of acquittal made by
the Board in respect of a child alleged to
have committed an offence other than the
heinous offence by a child who has
completed or is above the age of sixteen
years; or

(b)
any
order
made
by
a
Committee in respect of finding that a
person is not a child in need of care and
protection.

(4) No second appeal shall lie
from any order of the Court of Session,
passed in appeal under this section.

(5) Any person aggrieved by an
order of the Children's Court may file an
appeal before the High Court in accordance
with the procedure specified in the Code of
Criminal Procedure, 1973 (2 of 1974)."

Section 102 of the Act is as
under:

"102. Revision.- The High Court
may, at any time, either on its own motion
or on an application received in this behalf,
call for the record of any proceeding in
which any Committee or Board or
Children's Court, or Court has passed an
order, for the purpose of satisfying itself as
to the legality or propriety of any such
order and may pass such order in relation
thereto as it thinks fit:

Provided that the High Court
shall not pass an order under this section
prejudicial to any person without giving
him a reasonable opportunity of being
heard."

9. In the case of Menu Patel v. State
of UP1, it has been held by this Court:

"9.
The
issue
whether
the
victim/corpus who is a minor, can be sent
to Nari Niketan against her wish, is no
longer
res-integra
and
has
been
conclusively settled by a catena of
decisions of this Court. In the case of Smt.
Kalyani Chowdhary v. State of U.P.
reported in 1978 Cr. L.J. 1003 (D.B.), a
Division Bench of this Court has taken the
view that:

"no person can be kept in a
Protective Home unless she is required to
be kept there either in pursuance of
Immoral Traffic in Women and Girls
Protection Act or under some other law
permitting her detention in such a home. In
such cases, the question of minority is
irrelevant as even a minor cannot be
detained against her will or at the will of
her father in a Protective Home."

Further, in Smt. Neelam vs.
State of Uttar Pradesh & Ors2, a
Division Bench of this Court has again held
that:

"The
issue
whether
the
victim/corpus who is a minor, can be sent
368 INDIAN LAW REPORTS ALLAHABAD SERIES
to Nari Niketan against her wish, is no
longer
res-integra
and
has
been
conclusively settled by a catena of
decisions of this Court. In the case of Smt.
Kalyani Chowdhary v. State of U.P.
reported in 1978 Cr. L.J. 1003 (D.B.), a
Division Bench of this Court has taken the
view that:

"no person can be kept in a
Protective Home unless she is required to
be kept there either in pursuance of
Immoral Traffic in Women and Girls
Protection Act or under some other law
permitting her detention in such a home. In
such cases, the question of minority is
irrelevant as even a minor cannot be
detained against her will or at the will of
her father in a Protective Home."

In Pushpa Devi v. State of Uttar
Pradesh & Ors3, it has been held by this
Court:

"In any event, the question of age
is not very material in the petitions of the
nature of habeas corpus as even a minor
has a right to keep her person and even the
parents cannot compel the detention of the
minor against her will, unless there is some
other reason for it.

We have no mind to enter into the
question and decide as to when a particular
minor is to be set at liberty in respect of her
person or whether she shall be governed by
the direction of her parents. The question of
custody of the petitioner as a minor, will
depend upon various factors such as her
marriage which she has stated to have taken
place with Guddu before the Magistrate.

Apart from the above factors, the
more important aspect is as to whether
there is any authority for detention of the
petitioner with any person in law. Though,
it is said that she has been detained in the
Nari Niketan under the directions of the
Magistrate, the first thing to be seen should
be as to whether the Magistrate can direct
the detention of a person in the situation in
which the petitioner is. No Magistrate has
an absolute right to detain any person at the
place of his choice or even any other place
unless it can be justified by some law and
procedure. It is very clear that this
petitioner would not be accused of the
offence under Sections 363 and 366 I. P. C.
We are taking the version because she
could only be a victim of it. A victim may
at best be a witness and there is no law at
least now has been quoted before us
whereunder the Magistrate may direct
detention of a witness simply because he
does not like him to go to any particular
place. In such circumstances, the direction
of the Magistrate that she shall be detained
at Nari Niketan is absolutely without
jurisdiction and illegal. Even the Magistrate
is not a natural guardian or duly appointed
guardian of all minors."

A Division Bench of this Court in
the case of Smt. Raj Kumari v.
Superintendent,
Women
Protection,
Meerut & Ors.4 had taken a similar view
and laid down the following dictum:

"In view of the above, it is well
settled view of this Court that even a minor
cannot
be
detained
in
Government
Protective Home against her wishes. In the
instant matter, petitioner has desired to go
with Sunil Kumar besides this according to
the two medical reports, i. e. of the Chief
Medical Officer and L. L. R. M., College
Meerut, the petitioner is certainly not less
than 17 years and she understands her well
being and also is capable of considering her
future welfare. As such, we are of the
opinion that her detention in Government
Protective Home, Meerut against her
wishes is undesirable and impugned order
dated 23.11.96 passed by the Magistrate
directing her detention till the party
concerned gets a declaration by the civil
court or the competent court of law
12 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
369
regarding her age, is not sustainable and is
liable to be quashed."

Yet this Court, in another case in
Smt. Preeti Nishad through her Husband,
Mahendra Kumar v. State of Uttar
Pradesh5, observed as under:

"The main objection of Sri S. N. Tilhari,
learned A.G.A. that the petitioner should be asked
to file revision at this stage will be defeating the
spirit of Article 21 of the Constitution of India. The
petitioner is neither an accused nor an offender of
law. She is simply a citizen of this country who has
done no wrong. She is major. The C.M.O.
concerned has given her age to be around 20 years.
This is based on medical examination and x-ray
report. So far the certificate submitted by the father
is concerned, it appears to be fabricated. corpus has
clearly mentioned that she has never studied in the
school from where the age certificate has been
obtained. It is not a matriculation certificate. It is a
lower class certificate issued recently after the
controversy arose. It cannot be trusted compared to
the C.M.O. report and her own version before the
Court.

She has made statement before
this Court that she does not want to live in
any Nari Niketan or Sudhar Griha. She
does not even want to live with his father.
Somehow due to incorrect judicial order
she is languishing in Nari Niketan for the
last seven months. It will be a travesty of
justice if this Court dismisses this petition
on any alternative remedy. The law on the
subject is very clear. The Court cannot shut
its eyes and relegate a citizen to further
harassment and illegal detention. Neither
the S.D.M. nor the A.D.J. had any
jurisdiction to send a lady to a protective
home without her consent. The respective
orders passed by them are set aside."

While concluding in the case of
Smt. Neelam (supra), this Court held as
follows:

"Now coming to the second
objection canvassed by learned A. G. A.
before this Court that the detention of the
petitioner cannot be said to be illegal as she
has been sent to Nari Niketan in pursuance
of a judicial order, we hold that the second
objection raised by learned A. G A. is also
without any merit in view of the principle
laid down by the a Division Bench of this
Court in the case of Pushpa Devi (supra)
that a victim may at best be a witness and
there is no law at least now has been quoted
before us whereunder the Magistrate may
direct detention of a witness simply
because he does not like him to go to any
particular place.

Thus,
merely
because
the
petitioner has been sent to Nari Niketan
pursuant to a judicial order which per se
appears to be without jurisdiction, her
detention cannot be labelled as "legal"
rendering this Habeas Corups writ petition
liable to be dismissed as not maintainable."

In the case of Rahul Kumar
Singh & Anr. v. State of Uttar Pradesh
& Ors.6 it has been held by this Court:

"The issue whether a minor, can be
sent to Nari Niketan against her wish, is no
longer res-integra and stands conclusively
settled by a catena of decisions of this Court.
In the case of Smt. Kalyani Chowdhary v.
State of U.P. reported in 1978 Cr. L.J. 1003
(D.B.), a Division Bench of this Court has
taken the view that:

"No person can be kept in a
Protective Home unless she is required to
be kept there either in pursuance of
Immoral Traffic in Women and Girls
Protection Act or under some other law
permitting her detention in such a home. In
such cases, the question of minority is
irrelevant as even a minor cannot be
detained against her will or at the will of
her father in a Protective Home."

In the case of Kajal & Anr. v.
State of Uttar Pradesh & Ors.7, it has
been held as under:
370 INDIAN LAW REPORTS ALLAHABAD SERIES

"It may also be appreciated that
the issue whether the victim/corpus who is
a minor, can be sent to Nari Niketan against
her wish, is no longer res-integra and has
been conclusively settled by a catena of
decisions of this Court. In the case of Smt.
Kalyani Chowdhary v. State of U.P.
reported in 1978 Cr. L.J. 1003 (D.B.), a
Division Bench of this Court has taken the
view that:

"no person can be kept in a
Protective Home unless she is required to
be kept there either in pursuance of
Immoral Traffic in Women and Girls
Protection Act or under some other law
permitting her detention in such a home. In
such cases, the question of minority is
irrelevant as even a minor cannot be
detained against her will or at the will of
her father in a Protective Home."

... ... ...

Thus,
merely
because
the
petitioner has been sent to Nari Niketan
pursuant to a judicial order which per se
appears to be without jurisdiction, her
detention cannot be labelled as "legal"
rendering this Habeas Corups writ petition
liable to be dismissed as not maintainable."

10. Above judgments, thus, lay down
the law that writ of habeas corpus is
maintainable even if the same has been
filed against a judicial order of the
Magistrate, sending the corpus to Juvenile
Home/Nari Niketan/Child Care Home or
any
other
Home
duly
authorized/recognized.

11. In some other judgments passed
by this Court, a contrary view has been
taken wherein it has been held that if a
corpus has been sent to the Juvenile
Home/Nari Niketan/Child Care Home
pursuant to the order passed by the
Committee, detention of the corpus cannot
be said to be illegal, requiring issuance of a
writ of habeas corpus. One such view has
been taken by this Court in the case of
Saurabh Pandey v. State of Uttar
Pradesh8, which reads as under:

"10. Once the corpus is found a
child, as defined by Section 2 (12) of the
J.J. Act, 2015, and, allegedly, a victim of a
crime (in this case Case Crime No.475 of
2018 detailed above), she would fall in the
category of child in need of care and
protection in view of clauses (iii), (viii) and
(xii) of sub-section (14) of section 2 of the
J.J. Act, 2015. Hence, the order passed by
the Child Welfare Committee placing the
corpus in a protection home would be
within its powers conferred by section 37
of the J.J. Act, 2015.

11. In view of the above, as 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, 2015, the detention of the corpus
cannot be said to be illegal so as to warrant
issuance of a writ of habeas corpus. If the
petitioner is aggrieved by the order of the
Child Welfare Committee, the petitioner is
at liberty to take recourse to the remedy of
an appeal provided under Section 101 of
the J. J. Act, 2015."

In the case of Smt. Shahjahan v.
State of Uttar Pradesh & Ors.9, it has
been observed as under:

"6.
Having
considered
the
submissions raised and the aforesaid
background, once the petitioner has already
filed a revision in relation to the custody of
the same victim against the order dated
8.10.2014 that is stated to be pending, it
cannot be said that the victim is under
unlawful custody.
12 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
371

8. The victim, therefore, does not
appear to be in unlawful custody and,
therefore, the present Habeas Corpus Writ
Petition in the aforesaid background would
not be maintainable. It is open to the
petitioner to seek her remedy in the
revision which she has filed before the
appropriate Court."

Further, in the case of Km. Mona
@ Reema v. State of Uttar Pradesh10, it
has been held as under:

"After considering the facts and
circumstances of the case, the corpus was
sent to Muzaffarnagar by learned A.C.J.M.,
Court No. 3, Muzaffarnagar on 9.5.2013. It
is a very serious case in which a girl of the
Bihar State has been kidnapped who herself
lodged the FIR in police station, Nai
Mandi, Muzaffarnagar (U.P.). On the
application moved by the I.O. she has been
sent to Nari Niketan, Meerut by learned
A.C.J.M., Court No. 3, Muzaffarnagar vide
order dated 9.5.2013. The order dated
9.5.2013 is not suffering from any illegality
and irregularity. The order has been passed
in welfare of the corpus. The deponent of
this writ petition Nadeem Ahmad is real
brother of the accused Intazar, it appears
that this petition has been filed with ulterior
motive without disclosing the credential of
the person who has filed this writ petition
on behalf of the corpus Km. Mona @
Reema. The corpus has been sent from
Muzaffarnagar to Meerit in pursuance of
the judicial order dated 9.5.2013, in any
case her detention is not illegal. The
present writ petition is devoid of merit,
therefore, the prayer for setting the corpus
on her liberty is refused."

In the case of Guria Bhagat @
Guria Rawani v. State of Jharkhand &
Ors11, it has been held as under:

"5. ... ... ... Thus, in no
circumstances, it can be said that the
custody of the petitioner with the Nari
Niketan at Deoghar is an illegal custody. If
the petitioner is aggrieved by the order of
Judicial Magistrate, First Class, Dhanbad,
she is at liberty to challenge the same in
accordance with law before an appropriate
forum. So far this writ of Habeas Corpus is
concerned, the same is not tenable at law as
the custody of the present petitioner with
the Nari Niketan at Deoghar is by virtue of
the order of Judicial Magistrate, First Class,
Dhanbad
dated
26.9.2013
and
more
particularly, when the application preferred
by the petitioner for her release has been
rejected by the Judicial Magistrate, First
Class, Dhanbad by a detailed speaking
order dated 22.10.2013. These two orders,
make the custody of the petitioner with the
Nari Niketan at Deoghar is a legal one.
Unless these two orders are challenged in
an
appropriate
matter
before
the
appropriate forum as per the law applicable
to the petitioner as well as the respondent,
there is no substance in this writ petition.
Hence, the same is hereby dismissed,
reserving the liberty with the petitioner to
challenge the orders passed by the Judicial
Magistrate, First Class, Dhanbad."

In Smt. Himani v. State of Uttar
Pradesh & Ors.12, it has been held that:

"9.
Considering
the
facts,
circumstance of the case, submission made
by learned counsel for the petitioner,
learned A.G.A.for the State of U.P.,
counsel appearing on behalf of respondent
no.4 and counsel appearing on behalf of Pt.
Vigyan Prakash Sharma, it appears that in
the present case the corpus was allegedly
kidnapped by Devendra Singh alias Bunty
on 20.6.2012, its FIR has been lodged on
2.7.2012 in case crime no. 111 of 2012
under sections 363, 366 I.P.C., Police
Station Nangal District Bijnor. According
to the school certificate, the date of birth of
the corpus is 10.5.1996, but according to
the first medical examination report she
372 INDIAN LAW REPORTS ALLAHABAD SERIES
was aged about 19 years but according to
second medical examination done by
Medical Board, constituted by C.M.O.
Bijnor, she was found above 18 years and
below 20 years of age. According to the
statement recorded under section 164
Cr.P.C.,
she
has
not
supported
the
prosecution story, she stated that she had
gone in the company of Devendra Singh
alias Bunty with her free will and consent.
The Marriage certificate filed with this
petition as Annexure-2 shows that it has
been issued by Pt. Vigyan Prakash Sharma,
Purohit of Sri Jharkhand Mahadeo Mandir
on 24.2.2012 mentioning therein that the
corpus
and
Devendra
Singh
have
performed marriage in the temple on
24.2.2012 at 5.30 P.M. but marriage
certificate shows that it was not bearing the
signatures of family members of corpus
and Pt. Vigyan Prakash Sharma was not
legally authorized to issue such type of
marriage certificate but Pt. Vigyan Prakash
Sharma who appeared before this Court
tendered his unconditional apology and
assured the Court that in future he shall not
issue such type of certificate, therefore, this
Court is restrained to proceed further
against Pt. Vigyan Prakash Sharma by
accepting unconditional apology tendered
by him. According to the school record, the
date of birth of the corpus is 10.5.1996,
according to her date of birth she was
minor aged about 16 years on the date of
the alleged incident. In such an age, she
was playing with emotions and she was not
capable to foresee her future prospects of
her life. The corpus has refused to go in the
company
of
her
father.
In
such
circumstances,
the
learned
Judicial
Magistrate/Civil Judge ( J.D.) Najibabad,
District Bijnor sent the corpus to Nari
Niketan Moradabad vide order dated
24.7.2012. The order dated 24.7.2012 is not
suffering from any illegality or irregularity.
The corpus has been detained in Nari
Niketan Moradabad in pursuance of the
judicial order dated 24.7.2012, therefore,
her detention is not illegal. The present
petition is devoid of the merits. The prayer
for quashing the impugned order dated
24.7.2012 is refused."

In the case of Akash Kumar v.
State of Jharkhand & Ors.13, it has been
held by the Jharkhand High Court that:

"4. Having heard learned counsel
for both the sides and looking to the facts
and circumstances of the case, we see no
reason to entertain this writ of Habeas
Corpus mainly for the following facts and
reasons:

(i) It appears that the custody of
this petitioner is with the respondent State
in pursuance of the judicial order passed by
the Judicial Magistrate, 1st Class, Ranchi in
G.R. No. 2366 of 2013 dated 27th May,
2013 which is at Annexure-5 to the memo
of this writ application. Once the custody
with the State is in pursuance of the judicial
order, it cannot be said that the State is
having illegal custody of the petitioner and,
hence, the writ of Habeas Corpus is not
tenable, at law.

(ii) Learned counsel for the
petitioner has relied upon Sections 6, 7 and
14 of the Juvenile Justice Act, 2000 and
submitted that the order passed by the
Judicial Magistrate, 1st Class in G.R. No.
2366 of 2013 is de hors the provisions of
this Act and, hence, custody with the
respondent is illegal. The contention for
issuance of prerogative writ of Habeas
Corpus
under
Article
226
of
the
Constitution of India, is not accepted by
this Court. For issuance of the writ of
Habeas Corpus in exercise of power under
Article 226 of the Constitution of India, it
must be established by the petitioner that
the custody with the State of any person is
illegal. Here, there is no illegal custody of
12 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
373
the petitioner with the respondents, on the
contrary, this is as per the order passed by
the Judicial Magistrate, 1st Class, Ranchi in
G.R. No. 2366 of 2013 dated 27th May,
2013 (Annexure-5). The order passed by
the concerned trial court may be illegal,
but, the custody with the respondent State
is absolutely legal. It is one thing that the
order passed by the Judicial Magistrate, 1st
Class, Ranchi may be illegal and it is
altogether another thing so far as custody
with
respondent-State
is
concerned,
otherwise, in all bail matters, there shall be
writ of Habeas Corpus. If the argument of
the counsel for the petitioner is accepted, in
bail application also under Section 439 of
the Code of Criminal Procedure, where
person is in judicial custody by virtue of
the order passed by the learned trial court,
writ of Habeas Corpus should be filed. This
is a fallacy in the argument canvassed by
the counsel for the petitioner. Until and
unless the order passed by the Judicial
Magistrate, 1st Class, Ranchi in this case is
quashed and set aside by the competent
court
in
appropriate
proceeding,
the
custody
of
the
petitioner
with
the
respondent-State is legal."

Similar view has been taken by
the Madhya Pradesh High Court in the case
Irfan Khan v. State of MP & Ors.14

The Gujarat High Court, in
Manish S/o Natvarlal Vaghela vs. State
of Gujarat15 has dealt the similar question
and held that:

"11. It is pertinent to note that the
allegations of the petitioner are regarding
non-compliance of various provisions of
the Act and Rules. Against this, the Child
Welfare Committee has came with a case
that after following procedure and getting
order from the Court, it has given the child
to adoptive father. Therefore, when the
child has been given in adoption by the
order of the Court to adoptive parents, then
that act cannot be treated as an illegal act of
granting custody of minor. Even if there is
lack of following due procedure under the
Act and Rules by the Child Welfare
Committee that can be agitated by the
petitioner
under
the
provisions
of
appeal/revision, as referred to above by
taking out separate proceedings. When
there is an efficacious alternative remedy
available, writ of habeas corpus cannot be
issued especially when the Child Welfare
Committee has got necessary orders from
the Court before handing over the custody
of minor to adoptive parents.

14.