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

- **Citation:** (2021) 3 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-08
- **Case number:** Habeas Corpus Writ Petition No. 362 of 2020
- **Bench:** Sanjay Yadav, Mahesh Chandra Tripathi, Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-rachna-anr-v-state-of-u-p-ors-46867
- **Pages:** 37

## Headnote

(A) Constitution of India - Article 226 -
Juvenile Justice (Care and Protection of
Children) Act 2015 (J.J. Act) - Sections
2(35), 2(12), 2(13), 2(14), 27, 29 & 30 -
Child welfare committee - Powers of
committee
-

Functions
and
responsibilities of committee , Section 36 -
enquiry, Section 37 - Orders passed
regarding a child in need of care and
protection , Section 94 - presumption and
determination of age - Section 101 -
Appeals , Section 102 - Revision - interest
of minor is paramount - before proceeding
to pass order for custody of the minor -
welfare of the minor has to be kept in
mind - wish of minor and the wish/desire
of girl can always be considered by the
Magistrate concerned/Committee - as per
her wishes/desire further follow up action
be taken in accordance with law under the
J.J. Act.(Para -77)

(B) Constitution of India - Article 226 -
Writ of Habeas Corpus - maintainability -
sending
the
victim
to
the
Juvenile
Home/Nari Niketan/Child Care Home - not
maintainable against the judicial order
passed by the Magistrate or by the Child
Welfare Committee under Section 27 of
the J.J. Act (Para - 44,71)

(C)Civil Law - Juvenile Justice (Care and
Protection of Children) Act 2015 - Section
27 (9) - Committee exercises the power of
Judicial Magistrate - No Magistrate has an
absolute right to detain any person at the
place of his choice. (Para- 49,64)

(D) Civil Law - Juvenile Justice (Care and
Protection of Children) Act 2015 - Section
37
-
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 - taking into account
the child's wishes in case the child is
sufficiently mature to take a view - pass
one or more of the orders mentioned in
Section 37 (1) (a) to (h). (Para - 68)

Habeas Corpus Writ Petition has been filed by
the petitioners seeking a writ of habeas corpus,
commanding 4th respondent/Superintendent,
Children Home (Girl), to release corpus/2nd
petitioner who has been illegally detained in the
Children Home (Girl). (Para - 4)

HELD: - 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. 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 filing an
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
317
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. (Para -
78)

Issues
referred
for
determination
answered. (E-6)

List of Cases cited: -

## Text

_Characters 0–39,968 of 126,737. This is a partial read: ask again with offset=39968 for what follows._

316 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Let this order be communicated to
the learned District Judge, Mathura, the
Senior Superintendents of Police of Agra
and Mathura and the District Magistrate,
Agra by the Joint Registrar (Compliance),
forthwith.
----------
(2021)03ILR A316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2021

BEFORE

THE HON'BLE SANJAY YADAV, J.
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SIDDHARTHA VARMA, 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
(Senior Adv./Amicus Curiae)

Counsel for the Respondents:
G.A., Sri J.K. Upadhyay, Sri Amit Sinha

Habeas Corpus - 362 of 2020

(A) Constitution of India - Article 226 -
Juvenile Justice (Care and Protection of
Children) Act 2015 (J.J. Act) - Sections
2(35), 2(12), 2(13), 2(14), 27, 29 & 30 -
Child welfare committee - Powers of
committee
-

Functions
and
responsibilities of committee , Section 36 -
enquiry, Section 37 - Orders passed
regarding a child in need of care and
protection , Section 94 - presumption and
determination of age - Section 101 -
Appeals , Section 102 - Revision - interest
of minor is paramount - before proceeding
to pass order for custody of the minor -
welfare of the minor has to be kept in
mind - wish of minor and the wish/desire
of girl can always be considered by the
Magistrate concerned/Committee - as per
her wishes/desire further follow up action
be taken in accordance with law under the
J.J. Act.(Para -77)

(B) Constitution of India - Article 226 -
Writ of Habeas Corpus - maintainability -
sending
the
victim
to
the
Juvenile
Home/Nari Niketan/Child Care Home - not
maintainable against the judicial order
passed by the Magistrate or by the Child
Welfare Committee under Section 27 of
the J.J. Act (Para - 44,71)

(C)Civil Law - Juvenile Justice (Care and
Protection of Children) Act 2015 - Section
27 (9) - Committee exercises the power of
Judicial Magistrate - No Magistrate has an
absolute right to detain any person at the
place of his choice. (Para- 49,64)

(D) Civil Law - Juvenile Justice (Care and
Protection of Children) Act 2015 - Section
37
-
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 - taking into account
the child's wishes in case the child is
sufficiently mature to take a view - pass
one or more of the orders mentioned in
Section 37 (1) (a) to (h). (Para - 68)

Habeas Corpus Writ Petition has been filed by
the petitioners seeking a writ of habeas corpus,
commanding 4th respondent/Superintendent,
Children Home (Girl), to release corpus/2nd
petitioner who has been illegally detained in the
Children Home (Girl). (Para - 4)

HELD: - 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. 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 filing an
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
317
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. (Para -
78)

Issues
referred
for
determination
answered. (E-6)

List of Cases cited: -

1. Menu Patel Vs St. of U.P., 2015 SCC Online
AII 5892

2. Smt. Neelam Vs St. of U. P. & ors., Habeas
Corpus Writ Petition No. 36519 of 2015 decided
on 20.07.2015

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

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

5. Kajal & anr. Vs St. of U.P. & ors., Habeas
Corpus
W.P.
No.
3914/2018
decided
on
22.02.2019

6. Smt. Kalyani Chowdhary Vs St. of U.P., 1978
Cr. L.J. 1003 (D.B.)

7. Saurabh Pandey Vs St. of U.P., 2019 SCC
Online AII 4430

8. Smt. Shahjahan Vs St. of U. P. & ors., 2015
SCC Online AII 5224

9. Km. Mona @ Reema Vs St. of U.P., 2014 SCC
Online AII 7099

10. Guria Bhagat @ Guria Rawani Vs St. of
Jharkhand & ors., 2013 SCC Online Jhar 2149

11. Smt. Himani Vs St.of U.P. & ors. , 2013 SCC
Online ALL 1308

12. Akash Kumar Vs St. of Jharkhand & ors.,
2014 (19) R.C.R. (Criminal) 816

13. Irfan Khan Vs St.of M.P. & Ors. , 2016 (3)
MPLJ 449

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

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

16. Rahul Kumar Singh & anr. Vs St. of UP,
Habeas Corpus W.P. No. 47442 of 2015 decided
on 15.09.2015

17. Seema Devi @ Simran Kaur Vs St. of H.P.,
1998 (2) Crimes 168

18. Lila Gupta Vs Laxmi Narain, AIR 1978
Supreme Court 1351

19. Gindan & ors. Vs Barelal, AIR 1976 M.P. 83

20. Shankerappa Vs Ushilabai , AIR 1984
Karnataka 112

21. Greene Vs Home Secretary, (1941) 3 AII ER
388

22. Smt. Maneka Gandhi Vs U.O.I. & anr., AIR
1978 SC 597

23. Kanu Sanyal Vs D.M., Darjeeling & ors.,
(1973) 2 SCC 674

24. A.K. Gopalan Vs Govt.of India, AIR 1966 SC
816

25. Janardan Reddy & ors. Vs The St. of
Hyderabad & ors. , 1951 SCR 344

26. B. Ramachandra Rao Vs St. of Orissa,
(1972) 3 SCC 256

27. St. of Mah. & ors. Vs Tasneem Rizwan
Siddiquee , (2018) 9 SCC 745

28. Saurabh Kumar Vs Jailor, Koneila Jail & anr.
, (2014) 3 SCC 436

29. Manubhai Ratilal Patel Vs St. of Guj. & ors.
(2013) 1 SCC 314

30. Serious Fraud Investigation Office Vs Rahul
Modi & anr., (2019) 5 SCC 266
318 INDIAN LAW REPORTS ALLAHABAD SERIES
31. Jaya Mala Vs Home Secretary, Government
of J &K & ors., (1982) 2 Supreme Court Cases
538

32. Independent Thought. Vs U.O.I., (2017) 10
SCC 800

(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 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?;
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
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
modified
approach
in
consonance with the object of the Act ?"

3. Since the reference is desired to be
resolved by the larger Bench, the same has
come up for consideration before us under
the order of Hon'ble the Chief Justice dated
26.1.2021.

4. Present Habeas Corpus Writ
Petition has been filed by the petitioners
seeking
a
writ
of
habeas
corpus,
commanding
4th
respondent/Superintendent, Children Home
(Girl), District Saharanpur to release
corpus/2nd petitioner Km. Anchal, who has
been illegally detained in the Children
Home (Girl) District Saharanpur.

5. Brief matrix of the case, as is
reflected from the record, is that the first
information report was lodged by the
mother of second petitioner on 16.2.2020,
alleging that on 15.2.2020 her minor
daughter Km. Anchal2 aged 17 years has
been enticed by one Arjun S/o Rishipal.
She also alleged that while leaving the
house, the petitioner corpus had taken
certain ornaments and cash amount. She
also alleged that the father, mother and
brother of Arjun had helped him in taking
the petitioner corpus. The first information
report was registered under Sections 363
and 366 of IPC against Arjun, his parents
and relatives at Police Station Behat,
District Saharanpur. The petitioner corpus
was recovered on 04.3.2020 and on the
same day, her statement under Section 161
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
319
Cr. P.C. was recorded, wherein she alleged
that as quite often, she was beaten by her
mother and out of frustration, without
informing her parents, she had left home on
15.2.2020 and gone to the house of her
friend namely Km. Rachna-first petitioner
(sister of Arjun). She made a statement that
she had gone of her own freewill and was
living with her friend. However, she
refused for medical examination. As per
High School Certificate, her age has been
found to be 17 years, whereas as per
radiological examination conducted on
06.3.2020, her age was found to be about
20 years. Her statement under Section 164
of Cr. P.C. was also recorded on 07.3.2020,
wherein she also reiterated her previous
statement made under Section 161 Cr.P.C.

6. Thereafter, the petitioner corpus
was produced before the Chief Judicial
Magistrate, Saharanpur on 13.3.2020. It
was submitted by the police that as per
High School Certificate, the age of the
petitioner corpus is 17 years & 20 days and,
therefore, suitable order be passed in regard
to her custody. The mother of petitioner
corpus also filed an application before the
Chief Judicial Magistrate to the effect that
the petitioner corpus is minor and,
therefore, in the interest of justice, she may
be sent to Balika Vikas Grih/Child
Development Home. The finding was
recorded by the Magistrate, determining the
age of petitioner corpus to be 17 years. The
Magistrate had directed for producing her
before Bal Kalyan Samiti/Child Welfare
Committee3
for
issuance
of
further
direction with regard to the custody of
petitioner corpus. Pursuant to the order
passed by the Magistrate, the petitioner
corpus was produced before the Committee
and an order was passed by the Committee
for keeping her in Children Home (Girl).
Pursuant to the said order, the petitioner
corpus
is
in
Children
Home
(Girl)
Saharanpur.

7. Aggrieved with the said order, the
present petition has been preferred for
issuance of a writ of habeas corpus. While
pressing the writ petition before the
Division Bench, it has been urged that in
her statement under Section 164 of Cr.
P.C., the petitioner-corpus has categorically
stated that on account of torture by her
mother and brother, she left her house and
is living happily with the first petitioner.
Once the custody of the petitioner corpus
has been denied by her parents, the
petitioner corpus wanted to go with the first
petitioner and therefore, she cannot be sent
to Children Home (Girl) against her wishes.
Even if the petitioner corpus is minor, she
cannot be kept in Children Home (Girl)
against her wishes.

8. Before the Division Bench, learned
A.G.A. opposed the petition by claiming
that the petitioner corpus is minor as per
her date of birth recorded in the High
School certificate. It has been urged that
the age of the petitioner corpus is to be
determined by applying the principles
provided in Section 94 of the J.J. Act under
which primacy is to be recorded to the date
of
birth
entered
in
the
educational
certificate over the medical evidence. It has
also been objected by learned A.G.A. 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
questioned/assailed in petition seeking writ
of hapeas corpus. It has also been urged
that the petitioner corpus has efficacious
alternative remedy of filing an appeal under
Section 101 of the J.J. Act. The plea was
taken that the Committee had exercised the
320 INDIAN LAW REPORTS ALLAHABAD SERIES
power of Magistrate and in view of the
provisions of Section 27 of the J.J. Act, for
all purposes, the Committee acts like the
Magistrate. Once the order has been passed
by the Magistrate then it can only be
assailed before the appropriate Court by
filing an appeal.

9. The Division Bench considered two
sets of judgements; (i) the first set of
judgements laid 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 and (ii) in second set
of judgements, contrary view has been
taken by the coordinate Benches of this
Court, 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.

(FIRST SET OF JUDGEMENTS)

10. The reliance has been placed
before
the
Division
Bench
on
the
judgement of this Court in Menu Patel vs.
State of UP4, wherein it has been held as
under:-

"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."

11. Similar view has also been taken
in (Smt. Neelam vs. State of Uttar
Pradesh and ors5 in which a Division
Bench of this Court has again held 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."

12. The reliance has also been placed
on the judgement in Pushpa Devi vs. State
of Uttar Pradesh & ors6, wherein it was
held:-

"In any event, the question of age
is not very material in the petitions of the
nature of habeas corpus as even a minor
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
321
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."(emphasis supplied)

13. The Division Bench in the case of
Smt. Raj Kumari vs. Superintendent,
Women Protection, Meerut & ors.7 had
taken a similar view and held as under:-

"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
regarding her age, is not sustainable and is
liable to be quashed."

14. Before the Division Bench, the
reliance has also been placed on the
judgement passed in Kajal & another vs.
State of Uttar Pradesh & ors.8, wherein it
has been held as under:-

"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.9, 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
322 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(SECOND SET OF JUDGEMENTS)

15. Contrary view has been taken by
the coordinate Bench of this Court in the
case of Saurabh Pandey v. State of Uttar
Pradesh10, 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."

16. Similar view has also been taken
in the case of Smt. Shahjahan v. State of
Uttar Pradesh & Ors.11, wherein 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.

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."

17. Further, in the case of Km. Mona
@ Reema v. State of Uttar Pradesh12 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
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
323
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."

18. In the case of Guria Bhagat @
Guria Rawani v. State of Jharkhand &
Ors13 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."

19. In Smt. Himani v. State of Uttar
Pradesh & Ors.14 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
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
324 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

20. In the case of Akash Kumar v.
State of Jharkhand & Ors.15 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
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
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
325
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."

21. The Division Bench has also
considered the judgement passed by
Madhya Pradesh High Court in the case
Irfan Khan v. State of MP & Ors.16 The
Gujarat High Court, in Manish S/o
Natvarlal Vaghela vs. State of Gujarat17
has dealt with 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.

22.
 The Division
Bench
also
considered the Full Bench judgement
passed by Patna High Court in the case of
Shikha Kumari v. State of Bihar18,
wherein the matter was referred to the
larger Bench and it has held by the Bench
that:

"67. 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. It is further evident that an
illegal or irregular exercise of jurisdiction
by a Magistrate passing an order of remand
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
filing
appropriate
proceedings
before
the
competent revisional or appellate forum
under the statutory provisions of law but
cannot be reviewed in a petition seeking the
writ of habeas corpus.
68.
We,
accordingly,
sum
up
our
conclusions in respect of the first three
issues for determination as follows:-

Question No.1 : "Whether, in a
petition for issuance of writ of habeas
corpus, an order passed by a Magistrate
could be assailed and set-aside?"

Answer
:
Our
irresistible
conclusion in view of the ratio laid down
by
the
Supreme
Court
in
the
aforementioned cases is that a writ of
habeas corpus would not be maintainable,
if the detention in custody is as per judicial
orders passed by a Judicial Magistrate or a
court
of
competent
jurisdiction.
Consequently an order of remand passed by
a Judicial Magistrate having competent
jurisdiction cannot be assailed or set aside
in a writ of habeas corpus.

Question No.2: "Whether an
order of remand passed by a Judicial
Magistrate could be reviewed in a petition
326 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking the writ of habeas corpus, holding
such order of remand to be an illegal
detention ?"

Answer: An illegal or irregular
exercise of jurisdiction by a Magistrate
passing an order of remand can be cured by
way of challenging the legality, validity
and correctness of the order by filing
appropriate
proceedings
before
the
competent revisional or appellate court
under the statutory provisions of law. Such
an order of remand passed by a Judicial
Magistrate of competent jurisdiction cannot
be reviewed in a petition seeking the writ
of habeas corpus.

Question No.3: "Whether an
improper order could be termed/viewed as
an illegal detention ?"

Answer: In view of the clear,
unambiguous and consistent view of the
Supreme Court in the aforediscussed cases,
we unhesitatingly conclude and hold that
an illegal order of judicial remand cannot
be termed/viewed as an illegal detention."

23. The Division Bench has also
proceeded to observe that apart from above
mentioned cases, attention of this Court has
also been drawn to many other cases,
wherein issuance of a writ of habeas corpus
has been held to be maintainable, whereas
in some cases, the view of this Court is
otherwise. Such situation impelled the
Division
Bench
for
formulating
the
aforementioned questions to be decided by
the larger Bench.

24. Sri Saghir Ahmad, learned Senior
Advocate/Amicus Curiae submitted that the
habeas
corpus
writ
petition
is
not
maintainable and the efficacious remedy of
the petitioner is to file an appeal.

25. Sri Manish Goyal, learned
Additional Advocate General, appearing
for the State of U.P., submitted 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 challenged in a petition
seeking writ of habeas corpus. The
petitioner
corpus
has
an
efficacious
alternative remedy of filing an appeal under
Section 101 of J.J. Act and the judicial
order can only be challenged before the
appellate Court. While passing the order
impugned, the Committee has exercised the
power of Magistrate and in view of the
provisions of Section 27 of the J.J. Act, for
all purposes, the Committee acts like the
Magistrate. Once the order has been passed
by the Magistrate, then it can only be
assailed before the appropriate Court by
filing an appeal.

26. It has been submitted that subsection (4) of Section 1 of J.J. Act provides
that provision of the J.J. Act shall apply to
all the matters concerning children in need
of care and protection and children in
conflict with law. He has also placed
reliance on Section 2 (14) (iii) (a) of J.J.
Act, which provides that "child in need of
care and protection" means a child who
resides with a person (whether a guardian
of child or not) and such person has
injured, exploited, abused or neglected the
child or has violated any other law for the
time being in force for the protection of
child. Therefore, the girl child detained in
Nari Niketan/Children Home will come
under child in need of care and protection.
In such situation, Section 27 of J.J. Act
would be attracted, wherein there is
provision of Child Welfare Committee,
which deals with child in need of care and
protection and the State Government has
been empowered to constitute for every
district, one or more Child Welfare
3 All. Km. Rachna & Anr. Vs. State of U.P. & Ors.
327
Committees for exercising the powers and
to discharge the duties conferred on such
Committees in relation to children in need
of care and protection. Section 27 (9)
provides that the Committee shall function
as a Bench and shall have the powers
conferred by the Code of Criminal
Procedure,
1973
on
a
Metropolitan
Magistrate or, as the case may be, a
Judicial Magistrate of First Class. Under
Sections 29 and 37 of J.J. Act, the Child
Welfare Committee has powers to send the
children to children's home or fit facility
etc. Therefore, he submitted that a person
aggrieved by an order passed by the Child
Welfare Committee can file an appeal in
the Children Court under Section 101 of the
J.J. Act. The order passed by the
Committee pursuant to which the corpus
has been sent to Children's Home or Nari
Niketan is a judicial order and hence, the
detension of corpus cannot be termed to be
illegal. Moreover, the order passed by the
Committee is appealable and hence the
Habeas Corpus Petition is not maintainable
and is liable to be dismissed.

27. Shri Manish Goyal, learned
Additional
Advocate
General
further
submitted that in Smt. Neelam vs. State of
UP & 4 others (supra); Rahul Kumar
Singh & another vs. State of UP 19 and
Kajal & another vs. State of UP and ors
(supra), as relied upon by the Division
Bench, wherein the Habeas Corpus Writ
Petitions had been maintained, the Court
had failed to consider the provisions of J.J.
Act and as such, it may safely be said that
the orders passed in the aforesaid cases are
per incuriam. In support of his submission,
he has placed reliance on the judgement
passed by the Full Bench of Patna High
Court in Shikha Kumari vs. State of
Bihar (supra) and submitted that so far as
the questions formulated by this Court are
concerned, in similar circumstances, the
Patna High Court in Shikha Kumari's case
(supra) has considered and answered all the
three questions.

28. Having heard the parties, apart
from considering the issues referred by the
Division Bench, we need to deal with
certain ancillary issues attached in cases of
elopement of minor girls and on recovery,
sending them to Nari Niketan/Protection
Home/Care Home. We find increasing
number of habeas corpus petitions being
filed by the parents/guardians or alleged
husband for production of their wards or
wife, who leave their parental houses in
these "Run away Marriages". While the
parents of the couples go through agony,
the couples are on the run with husband
being accused of kidnapping and/or rape.
The Court while dealing with habeas
corpus petitions are required to ensure that
the person whose production is sought is
not illegally detained. For this purpose, the
court ascertains whether the person is being
detained against his/her wishes or is
otherwise illegally detained and gives
directions, as required. In most of the cases,
where a minor girl after meeting her
parents and/or on reflection has second
thoughts about her marriage or escaped, her
custody is restored to parents as in the first
case. Generally, difficulty arises in cases
where the minor girl has entered into
matrimonial alliance and is steadfast in her
resolve to continue to cohabit with the
partner of her choice. At times, the girl is
even on family way.

29.