# Pawan Kumar (Corpus) & Anr v. State of U.P. & Ors

- **Citation:** (2025) 9 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-25
- **Case number:** Habeas Corpus Writ Petition No. 497 of 2025
- **Bench:** Salil Kumar Rai, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-corpus-anr-v-state-of-u-p-ors-53968
- **Pages:** 15

## Headnote

G.A.

Issue for Consideration
Whether the Court in a Petition for a Writ of
Habeas Corpus can consider the legality of the
detention
of
petitioner
even
though
the
detention is by a judicial order and whether a
Writ of Habeas Corpus is to be issued directing
the release of petitioner no. 1 because the
Board vide its order dated 15.5.2025 has
declared the petitioner a juvenile on the date
the crime was committed?

Head Notes
The Juvenile Justice (Care and Protection
of
Children)
Act,
2015-
Section
1(4),2,3,6,9,10,14,15,18,19,20

;
The
Juvenile Justice (Care and Protection of
Children)
Model
Rules,
2016;The
Constitution of India,1950-Article 226- No
claim that he was a child / juvenile at the
time the offence was committed was
raised by petitioner when he was initially
produced before the Magistrate after
being apprehended. The records show
that the claim was, for the first time,
raised by the petitioner before the trial
court after charges were framed- The
initial
detention
of
petitioner
as
a
consequence of a judicial order may not
have been illegal. But, in light of Section
9(4) of the Act, the detention of petitioner
no. 1 in jail became illegal after he raised
a claim that he was a child at the time the
offence was committed. Writ petition
partly allowed.

Held- The validity of the present detention can
be examined and a writ would be issued even
where the initial detention was legal and valid
but the present detention was found to be
illegal. (E-15)
(Para 34 )

Case Law Cited
Manubhai Ratilal Patel Through Ushaben vs.
State of Gujarat & Others (2013) 1 SCC 314;
Kanu Sanyal vs. District Magistrate, Darjeeling &
Others (1974) 4 SCC 141. Sapmawia vs. Deputy
Commissioner, AIJAL (1970) 2 SCC 399; Rishipal
Singh Solanki vs. State of Uttar Pradesh & Ors.
(2022) 8 SCC 602

List of Acts
The Juvenile Justice (Care and Protection of
Children) Act, 2015; The Juvenile Justice (Care
and Protection of Children) Model Rules, 2016;
The Constitution of India,1950

List of Keywords
Detention of petitioner; Juvenile Justice Act;
Section 9 (4); initial detention was legal;
Present detention found illegal;

Case Arising From
The present petition for writ of habeas corpus
has been filed for release of petitioner no. 1
from Naini Central Jail, Prayagraj pleading that
the detention of petitioner no. 1 in Naini Central
Jail is illegal and violates his fundamental rights
under Article 21 of the Constitution of India.

Appearances for Parties
Counsel for Petitioners(s) : In Person,Mohd
Salman,Nazia Nafees
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
713
Counsel for Respondent(s): G.A

## Text

_Characters 0–39,868 of 49,977. This is a partial read: ask again with offset=39868 for what follows._

712 INDIAN LAW REPORTS ALLAHABAD SERIES
compliance report within two months to
this Court.

52. The trial court record be sent to the
concerned Court forthwith.
----------
(2025) 9 ILRA 712
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SANDEEP JAIN, J.

Habeas Corpus Writ Petition No. 497 of 2025

Pawan Kumar (Corpus) & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
In Person, Mohd Salman , Nazia Nafees

Counsel for the Respondents:
G.A.

Issue for Consideration
Whether the Court in a Petition for a Writ of
Habeas Corpus can consider the legality of the
detention
of
petitioner
even
though
the
detention is by a judicial order and whether a
Writ of Habeas Corpus is to be issued directing
the release of petitioner no. 1 because the
Board vide its order dated 15.5.2025 has
declared the petitioner a juvenile on the date
the crime was committed?

Head Notes
The Juvenile Justice (Care and Protection
of
Children)
Act,
2015-
Section
1(4),2,3,6,9,10,14,15,18,19,20

;
The
Juvenile Justice (Care and Protection of
Children)
Model
Rules,
2016;The
Constitution of India,1950-Article 226- No
claim that he was a child / juvenile at the
time the offence was committed was
raised by petitioner when he was initially
produced before the Magistrate after
being apprehended. The records show
that the claim was, for the first time,
raised by the petitioner before the trial
court after charges were framed- The
initial
detention
of
petitioner
as
a
consequence of a judicial order may not
have been illegal. But, in light of Section
9(4) of the Act, the detention of petitioner
no. 1 in jail became illegal after he raised
a claim that he was a child at the time the
offence was committed. Writ petition
partly allowed.

Held- The validity of the present detention can
be examined and a writ would be issued even
where the initial detention was legal and valid
but the present detention was found to be
illegal. (E-15)
(Para 34 )

Case Law Cited
Manubhai Ratilal Patel Through Ushaben vs.
State of Gujarat & Others (2013) 1 SCC 314;
Kanu Sanyal vs. District Magistrate, Darjeeling &
Others (1974) 4 SCC 141. Sapmawia vs. Deputy
Commissioner, AIJAL (1970) 2 SCC 399; Rishipal
Singh Solanki vs. State of Uttar Pradesh & Ors.
(2022) 8 SCC 602

List of Acts
The Juvenile Justice (Care and Protection of
Children) Act, 2015; The Juvenile Justice (Care
and Protection of Children) Model Rules, 2016;
The Constitution of India,1950

List of Keywords
Detention of petitioner; Juvenile Justice Act;
Section 9 (4); initial detention was legal;
Present detention found illegal;

Case Arising From
The present petition for writ of habeas corpus
has been filed for release of petitioner no. 1
from Naini Central Jail, Prayagraj pleading that
the detention of petitioner no. 1 in Naini Central
Jail is illegal and violates his fundamental rights
under Article 21 of the Constitution of India.

Appearances for Parties
Counsel for Petitioners(s) : In Person,Mohd
Salman,Nazia Nafees
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
713
Counsel for Respondent(s): G.A

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. The present petition for writ of
habeas corpus has been filed for release of
petitioner no. 1 from Naini Central Jail,
Prayagraj pleading that the detention of
petitioner no. 1 in Naini Central Jail is
illegal and violates his fundamental rights
under Article 21 of the Constitution of
India.

2. The petition has been filed by
petitioner no. 2 on behalf of petitioner no.
1. The petitioner no. 2 claims herself to be
a social worker involved in protecting legal
rights of juvenile, women and down
trodden of the society. The petitioner no. 2
claims that she has been honoured for her
acts by the District Administration and
Judicial Authorities.

3. The relevant facts of the case are
that on 1.4.2017, Case Crime No. 0195 of
2017 under Section 302 of the Indian Penal
Code was registered against the petitioner
no. 1 as well as against his elder brother
and mother at Police Station Tharwai,
District Allahabad with the allegation that
petitioner no. 1, along with his mother and
other brother, had beaten to death his eldest
brother. The petitioner no. 1, along with
other accused, was arrested by the police
on 2.4.2017 and was detained in Naini
Central Jail, Prayagraj. Charge-sheet in the
case was filed on 21.5.2017 and the Chief
Judicial Magistrate, Allahabad vide his
order dated 5.7.2017 committed the case
for trial to the Sessions Court. The trial is at
present pending before the Additional
Sessions Judge / Special Judge (M.P. /
MLA), Prayagraj. Charges in the case were
framed by the trial court on 17.11.2017.
Before the trial court, the petitioner no. 1
claimed that he had studied till Class - V in
Primary School, Bhogatpur, Police Station
Tharvai, District Prayagraj and his date of
birth was 13.12.2002. In order to verify the
claim of petitioner no. 1, the trial court
summoned the Principal of the school. The
Principal appeared before the trial court
and produced the scholar register in which
the date of birth of petitioner no. 1 was
recorded as 13.12.2002. The date of birth
of petitioner no. 1 as recorded in the
scholar register showed that petitioner no. 1
was 14 years, 3 months and 19 days on the
date the crime was committed. The trial
court, through its letter dated 18.7.2024,
forwarded the matter to the Juvenile Justice
Board (hereinafter referred to as, 'Board'),
Khuldabad,
Prayagraj
for
appropriate
orders. It is to be noted that no order passed
by the trial court determining the age of
petitioner no. 1 or examining either the
evidentiary value of the entries in scholar
register or the veracity of the statement of
the Principal has been brought on record
before this Court. The Board, after
considering the scholar register and after
recording the statement of the Principal,
held that, on the date the offence was
committed, petitioner no. 1 was 14 years, 3
months and 19 days. Consequently, an
order dated 15.5.2025 was passed by the
Board declaring the petitioner no. 1
juvenile on the date the offence was
committed and a copy of the said order was
forwarded to the trial court and also to the
Superintendent, District Jail Naini, District
Prayagraj. However, the petitioner no. 1 is
still in detention in Naini Central Jail,
Prayagraj even though no case other than
the one referred above is registered against
him. Thus, the present petition for the relief
noted above.

4. It has been argued by the counsel
for the petitioner that in view of Section 18
714 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (hereinafter referred
to as, 'Act, 2015'), a juvenile can remain in
custody for a maximum period of three
years and because the petitioner no. 1 has
been in custody for almost eight years,
therefore, in any case, the present detention
of
petitioner
no.
1
is
illegal
and
unconstitutional
and
violates
his
fundamental rights under Article 21 of the
Constitution of India. It has been pleaded
that because the petitioner no. 1 has not
been released from jail despite the order
dated 15.5.2025 passed by the Board,
therefore, a writ of habeas corpus be issued
directing the release of petitioner no. 1
from jail.

5. Sri Paritosh Kumar Malviya, the
Additional
Government
Advocate
(hereinafter referred to as, ;AGA') has
opposed the petition. The objections of
AGA is that the detention of petitioner
no. 1 in Naini Central Jail is by a judicial
order, the validity of which cannot be
considered in a petition for a writ of
habeas corpus, therefore, the petition is
not maintainable and is liable to be
dismissed. It has been argued by the
AGA that the petitioner no. 1 has the
statutory remedy to apply for bail
available to a child in conflict with law.

6. We have considered the rival
submissions of the counsel for the parties.

7. The issue in the present petition is
whether the Court in a Petition for a Writ of
Habeas Corpus can consider the legality of
the detention of petitioner no. 1 even
though the detention is by a judicial order
and whether a Writ of Habeas Corpus is to
be issued directing the release of petitioner
no. 1 because the Board vide its order dated
15.5.2025 has declared the petitioner no. 1
a juvenile on the date the crime was
committed.

8. It would be appropriate that the
objections
of
the
AGA
to
the
maintainability
of
the
petition
be
considered first.

9. So far as the contention of AGA
that the validity of a judicial order
authorizing detention of any person cannot
be examined in a petition of habeas corpus
is concerned, it would be apt to refer to the
judgment of the Supreme Court in
Manubhai
Ratilal
Patel
Through
Ushaben vs. State of Gujarat & Others
(2013) 1 SCC 314. In paragraph - 31 of the
aforesaid judgment, the Supreme Court
observed as follows : -

"31. ... (T)he order of remand
which is a judicial act, as we perceive, does
not suffer from any infirmity. The only
ground that was highlighted before the
High Court as well as before this Court is
that once there is stay of investigation, the
order of remand is sensitively susceptible
and, therefore, as a logical corollary, the
detention is unsustainable. It is worthy to
note that the investigation had already
commenced
and
as
a
resultant
consequence, the accused was arrested.
Thus, we are disposed to think that the
order of remand cannot be regarded as
untenable in law. It is well accepted
principle that a writ of habeas corpus is
not to be entertained when a person is
committed to judicial custody or police
custody by the competent court by an
order which prima facie does not appear
to be without jurisdiction or passed in an
absolutely mechanical manner or wholly
illegal. As has been stated in the cases of B.
Ram Chandra Rao and Kanu Sanyal, the
court is required to scrutinize the legality
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
715
or otherwise of the order of detention
which has been passed. Unless the court is
satisfied that a person has been committed
to jail custody by virtue of an order that
suffers from the vice of lack of jurisdiction
or absolute illegality, a writ of habeas
corpus cannot be granted. It is apposite to
note that the investigation, as has been
dealt with in various authorities of this
Court, is neither an inquiry nor trial. It is
within the exclusive domain of the police to
investigate and is independent of any
control by the Magistrate. The sphere of
activity is clear cut and well demarcated.
Thus viewed, we do not perceive any error
in the order passed by the High Court
refusing to grant a writ of habeas corpus
as the detention by virtue of the judicial
order passed by the Magistrate remanding
the accused to custody is valid in law.

(emphasis supplied)

10.
It
is
apparent
from
the
observations
of
the
Supreme
Court
reproduced above that in a habeas corpus
petition, the legality of the detention order
can be examined to ascertain whether the
order suffers from a lack of jurisdiction or
is absolutely illegal or has been passed in a
wholly mechanical manner. If the order
detaining the person is without jurisdiction
or is absolutely illegal or has been passed
in a mechanical manner, a writ of habeas
corpus directing the release of the detenue
would be issued.

11. Moreover, there may be cases
where the detention of a person may be
invalid initially but, for some reason, may
subsequently become valid. Similarly, there
may be cases where the detention of a
person may have been valid initially but,
for some reasons, may subsequently
become invalid. In a petition of habeas
corpus the legality of present detention is
examined and the legality of detention prior
to filing of the petition is not relevant. In
the aforesaid context, it would be relevant
to refer to the judgments of the Supreme
Court in Manubhai Ratilal Patel (supra)
and Kanu Sanyal vs. District Magistrate,
Darjeeling & Others (1974) 4 SCC 141.

12. In Kanu Sanyal (supra), the
Supreme Court, after referring to its earlier
judgments on the issue as to which date
would be relevant to examine the legality
of detention challenged in a habeas corpus
proceeding, observed as follows : -

"4. These two grounds relate
exclusively to the legality of the initial
detention of the petitioner in the District
Jail, Darjeeling. We think it unnecessary
to decide them. It is now well settled that
the earliest date with reference to which
the legality of detention challenged in a
habeas
corpus
proceeding
may
be
examined is the date on which the
application for habeas corpus is made to
the Court. This Court speaking through
Wanchoo, J., (as he then was) said in A. K.
Gopalan v. Government of India :

"It is well settled that in dealing
with the petition for habeas corpus the
Court is to see whether the detention on the
date on which the application is made to
the Court is legal, if nothing more has
intervened between the date of the
application and the date of the hearing".

In two early decisions of this
Court, however, namely, Naranjan Singh v.
State of Punjab, and Ram Narain Singh v.
State of Delhi a slightly different view was
expressed and that view was reiterated by
this Court in B. R. Rao v. State of Orissa,
where it was said 9 (at page 259, para 7) :

"in habeas corpus proceedings
the Court is to have regard to the legality
716 INDIAN LAW REPORTS ALLAHABAD SERIES
or otherwise of the detention at the time of
the return and not with reference to the
institution of the proceedings".

and yet in another decision of this
Court in Talib Husain v. State of Jammu &
Kashmir, Mr. Justice Dua, sitting as a
Single Judge, presumably in the vacation,
observed that (at page 121, para 6) :

"in habeas corpus proceedings
the Court has to consider the legality of the
detention on the date of the hearing".

Of these three views taken by the
Court at different times, the second appears
to be more in consonance with the law and
practice in England and may be taken as
having received the largest measure of
approval in India, though the third view
also cannot be discarded as incorrect,
because an inquiry whether the detention
is legal or not at the date of hearing of the
application for habeas corpus would be
quite relevant, for the simple reason that if
on that date the detention is legal, the
Court cannot order release of the person
detained by issuing a writ of habeas
corpus. But, for the purpose of the present
case, it is immaterial which of these three
views is accepted as correct, for it is clear
that, whichever be the correct view, the
earliest date with reference to which the
legality of detention may be examined is the
date of filing of the application for habeas
corpus and the Court is not, to quote the
words of Mr. Justice Dua in B. R. Rao v.
State of Orissa (supra), "concerned with a
date prior to the initiation of the
proceedings for a writ of habeas corpus".
Now the writ petition in the present case
was filed on January 6, 1973 and on that
date the petitioner was in detention in the
Central Jail, Visakhapatnam. The initial
detention of the petitioner in the District
Jail, Darjeeling had come to an end long
before the date of the filing of the writ
petition. It is, therefore, unnecessary to
examine the legality or otherwise of the
detention of the petitioner in the District
Jail, Darjeeling. The only question that
calls for consideration is whether the
detention of the petitioner in the Central
Jail, Visakhapatnam is legal or not. Even if
we assume that grounds A and B are well
founded and there was infirmity in the
detention of the petitioner in the District
Jail, Darjeeling, that cannot invalidate the
subsequent detention of the petitioner in the
Central Jail, Visakhapatnam. See para 7 of
the judgment of this Court in B. R. Rao v.
State of Orissa (supra). The legality of the
detention of the petitioner in the Central
Jail, Visakhapatnam would have to be
judged on its own merits. We, therefore,
consider it unnecessary to embark on a
discussion of grounds A and B and decline
to decide them."

(emphasis supplied)

13. Similarly, the Supreme Court in
Manubhai Ratilal Patel (supra) after
referring to Kanu Sanyal (supra) held in
Paragraph no. 21 of the reports that 'any
infirmity
in
the
detention
of
the
petitioner at the initial stage cannot
invalidate the subsequent detention and
the subsequent detention has to be
judged on its own merits.'

14. In Kanu Sanyal (supra) and
Manubhai Ratilal Patel (supra) the
detenue had pleaded that the initial
detention
and
consequently,
the
continuation of the detention and the
present detention was invalid but the
Courts held that any illegality in the initial
detention, would not by itself, be sufficient
to invalidate the subsequent or present
detention, i.e., the detention at the time the
petition for Habeas Corpus was considered.
The principle of law that can be derived
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
717
from the judgments of the Supreme Court
in Kanu Sanyal (supra) and Manubhai
Ratilal Patel (supra) is that in a Habeas
Corpus petition, it is the legality of the
present detention which is to be examined
and the merits of the detention before the
filing of the petition is not relevant in a
habeas corpus petition.

15. As a corollary to the aforesaid it
can be held that in a Habeas Corpus
petition, the validity of the present
detention can be examined and a writ
would be issued even where the initial
detention was legal and valid but the
present detention was found to be illegal.
At this stage, it would also be relevant to
refer to the judgment of the Supreme Court
in Sapmawia vs. Deputy Commissioner,
AIJAL (1970) 2 SCC 399 wherein the
Court had directed the release of the
detenue on the ground that his continued
detention was illegal even if the initial
detention
was
valid
in
law.
The
observations of the Supreme Court in
Paragraph - 9 of the aforesaid judgment are
relevant and reproduced below : -

"9. The last order of remand as
disclosed to this Court is dated February 2,
1970, but that order is silent as to for how
many days the petitioner was remanded
and it also does not in terms authorise the
authorities of Dibrugarh Jail to keep the
petitioner in their custody. Reasons for
keeping him in jail custody are also not
stated. I am, however, prepared to assume
that the remand was to be in the custody
of the Superintendent, Dibrugarh Jail.
The question, however, arises under
which process of law was the order of
remand made? The State Counsel was
unable to throw any light in this connection
and he admitted that he was not in a
position to make any positive statement.
Further assuming that the order of remand
was by a Magistrate during the course of
the investigation it could not, under 'the
Code of Criminal Procedure, extend
beyond a term of 15 days. There was no
suggestion on behalf of the State counsel
that any special law authorised a remand
for a longer period in this case. Even the
order of the High Court directed the
investigation to be completed within two
months. These two months expired a long
time ago. In the return, though it is
asserted
that
the
investigation
was
complete by March 20, 1970 and sanction
is also stated to have been obtained on May
12, 1970, no order by a Magistrate
authorising the petitioner's detention in
custody has been produced. In these
circumstances I am constrained to hold
that the petitioner's present custody in
Dibrugarh Jail has not been shown to be in
accordance with the procedure established
by law."

(emphasis supplied)

16. Before proceeding further, it
would be appropriate to refer to certain
provisions of the Act, 2015 relevant to
decide the legality of the present detention
of petitioner no. 1.

17. The Act, 2015 came in force w.e.f.
15.1.2016 and was in force on the date the
crime was committed.

18. Section 1(4) of the Act, 2015 starts
with a non-osbtante clause and provides
that 'notwithstanding anything contained
in any other law for the time being in
force, the provisions of the Act shall apply
to all matters concerning the children in
conflict with law including apprehension,
detention,
prosecution,
penalty
or
imprisonment of children in conflict with
718 INDIAN LAW REPORTS ALLAHABAD SERIES
law'. Juvenile has been defined in Section
2(35) to mean a child below the age of
eighteen years. Child has been defined in
Section 2(12) of the Act, 2015 to mean a
person who has not completed eighteen
years of age and a child in conflict with
law is defined in Section 2(13) as a child
who is alleged or is found to have
committed an offence and who has not
completed eighteen years of age on the
date of commission of such offence.
Section 2(54) of the Act, 2015 defines
'serious offences' to include offences for
which punishment under the Indian Penal
Code (45 of 1860) or any other law for the
time being in force, is imprisonment
between three to seven years. Section 2(33)
of the Act, 2015 defines
'heinous
offfences' to include offences for which
minimum punishment under the Indian
Penal Code (45 of 1860) or any other law
for
the
time
being
in
force
is
imprisonment for seven years or more.
Section 2(46) of the Act, 2015 defines
'place of safety' to mean any place or
institution, not being a police lockup or
jail, established separately or attached to an
observation home or a special home, as the
case may be, the person in-charge of which
is willing to receive and take care of the
child alleged or found to be in conflict with
law, by an order of the Board or the
Children's Court, both during inquiry and
ongoing rehabilitation after having been
found guilty for a period and purpose as
specified in the order.

19. Section 3 of the Act, 2015
prescribes the general principles to be
followed in the administration of the Act
and provides that the Central Government,
the State Governments, the Board, and
other agencies while implementing the
provisions of the Act, 2015 shall be guided
by the fundamental principles enumerated
in said provision. Section 3(ix) of the Act,
2015 provides that no waiver of any of
the right of the children is permissible or
valid, whether sought by the children or
person acting on behalf of the child, or a
Board or a Committee and any nonexercise of a fundamental right shall not
amount to waiver.

20. Section 6 (1) of the Act, 2015
provides that 'any person, who has
completed eighteen years of age, and is
apprehended for committing an offence
when he was below the age of eighteen
years, then, such person shall, subject to the
provisions of Section 6, be treated as a
child during the process of inquiry'. Section
6(2) of the Act, 2015 states that 'the person
referred to in sub-section (1), if not
released by the Board shall be placed in a
place of safety during the process of
inquiry and shall be treated as per the
procedure specified under the provisions of
the Act, 2015'.

21. Section 9 of the Act, 2015
provides as follows : -

"9. Procedure to be followed by
a Magistrate who has not been empowered
under this Act. - (1) When a Magistrate,
not empowered to exercise the powers of
the Board under this Act is of the opinion
that the person alleged to have committed
the offence and brought before him is a
child, he shall, without any delay, record
such opinion and forward the child
immediately along with the record of such
proceedings
to
the
Board
having
jurisdiction.

(2) In case a person alleged to
have committed an offence claims before a
court other than a Board, that the person
is a child or was a child on the date of
commission of the offence, or if the court
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
719
itself is of the opinion that the person was a
child on the date of commission of the
offence, the said court shall make an
inquiry, take such evidence as may be
necessary
(but
not
an affidavit)
to
determine the age of such person, and
shall record a finding on the matter,
stating the age of the person as nearly as
may be:

Provided that such a claim may
be raised before any court and it shall be
recognised at any stage, even after final
disposal of the case, and such a claim shall
be determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.

(3) If the court finds that a
person has committed an offence and was
a child on the date of commission of such
offence, it shall forward the child to the
Board for passing appropriate orders and
the sentence, if any, passed by the court
shall be deemed to have no effect.

(4) In case a person under this
section is required to be kept in protective
custody, while the person's claim of being a
child is being inquired into, such person
may be placed, in the intervening period in
a place of safety."

(emphasis supplied)

22. Section 10(1) provides as follows:
-

"10.
Apprehension
of
child
alleged to be in conflict with law. - (1) As
soon as a child alleged to be in conflict
with law is apprehended by the police, such
child shall be placed under the charge of
the special juvenile police unit or the
designated child welfare police officer, who
shall produce the child before the Board
without any loss of time but within a period
of twenty-four hours of apprehending the
child excluding the time necessary for the
journey, from the place where such child
was apprehended:

Provided that in no case, a child
alleged to be in conflict with law shall be
placed in a police lockup or lodged in a
jail."

(emphasis supplied)

23. The prohibition contained in the
proviso
to
Section
10(1)
is
also
incorporated in Rule 54 (8) of the Juvenile
Justice (Care and Protection of Children)
Model Rules, 2016.

24. Sections 14, 15 and 18 of the Act,
2015 contain provisions for inquiry by the
Board regarding the child in conflict with
law. The relevant parts of Sections 14 and
15 are reproduced below : -

"14. Inquiry by Board regarding
child in conflict with law. - (1)

Where a child alleged to be in
conflict with law is produced before Board,
the Board shall hold an inquiry in
accordance with the provisions of this Act
and may pass such orders in relation to
such child as it deems fit under sections 17
and 18 of this Act.

(2) ...

(3) ...

(4) ...

(5) The Board shall take the
following steps to ensure fair and speedy
inquiry, namely:-

(a) ...

(b) ...

(c) ...

(d) ...

(e) inquiry of serious offences
shall be disposed of by the Board, by
720 INDIAN LAW REPORTS ALLAHABAD SERIES
following the procedure, for trial in
summons cases under the Code of Criminal
Procedure, 1973 (2 of 1974);

(f ) inquiry of heinous offences,-

(i) for child below the age of
sixteen years as on the date of commission
of an offence shall be disposed of by the
Board under clause (e);

(ii) for child above the age of
sixteen years as on the date of commission
of an offence shall be dealt with in the
manner prescribed under section 15.

15. Preliminary assessment into
heinous offences by Board.- (1)

In case of a heinous offence
alleged to have been committed by a child,
who has completed or is above the age of
sixteen years, the Board shall conduct a
preliminary assessment with regard to his
mental and physical capacity to commit
such offence, ability to understand the
consequences of the offence and the
circumstances in which he allegedly
committed the offence, and may pass an
order in accordance with the provisions of
subsection (3) of section 18:

Provided
that
for
such
an
assessment, the Board may take the
assistance of experienced psychologists or
psycho-social workers or other experts.

Explanation.-For the purposes of
this section, it is clarified that preliminary
assessment is not a trial, but is to assess the
capacity of such child to commit and
understand the consequences of the alleged
offence.

(2) Where the Board is satisfied
on preliminary assessment that the matter
should be disposed of by the Board, then
the Board shall follow the procedure, as far
as may be, for trial in summons case under
the Code of Criminal Procedure, 1973 (2 of
1974):

...

..."

25. Section 18 of the Act, 2015
provides as follows : -

"18. Orders regarding child
found to be in conflict with law. - (1)
Where a Board is satisfied on inquiry that a
child irrespective of age has committed a
petty offence, or a serious offence, or a
child below the age of sixteen years has
committed
a
heinous
offence,
then,
notwithstanding
anything
contrary
contained in any other law for the time
being in force, and based on the nature of
offence, specific need for supervision or
intervention, circumstances as brought out
in the social investigation report and past
conduct of the child, the Board may, if it so
thinks fit,-

(a) allow the child to go home
after advice or admonition by following
appropriate inquiry and counselling to
such child and to his parents or the
guardian;

(b) direct the child to participate
in group counselling and similar activities;

(c) order the child to perform
community service under the supervision of
an organisation or institution, or a
specified person, persons or group of
persons identified by the Board;

(d) order the child or parents or
the guardian of the child to pay fine:

Provided that, in case the child is
working, it may be ensured that the
provisions of any labour law for the time
being in force are not violated;

(e) direct the child to be released
on probation of good conduct and placed
under the care of any parent, guardian or
fit person, on such parent, guardian or fit
person executing a bond, with or without
surety, as the Board may require, for the
good behaviour and child's well-being for
any period not exceeding three years;
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
721

(f) direct the child to be released
on probation of good conduct and placed
under the care and supervision of any fit
facility for ensuring the good behaviour
and child's well-being for any period not
exceeding three years;

(g) direct the child to be sent to a
special home, for such period, not
exceeding three years, as it thinks fit, for
providing reformative services including
education, skill development, counselling,
behaviour
modification
therapy,
and
psychiatric support during the period of
stay in the special home:

Provided that if the conduct and
behaviour of the child has been such that, it
would not be in the child's interest, or in
the interest of other children housed in a
special home, the Board may send such
child to the place of safety.

(2) If an order is passed under
clauses (a) to (g) of sub-section (1), the
Board may, in addition pass orders to

(i) attend school; or

(ii) attend a vocational training
centre; or

(iii) attend a therapeutic centre;
or

(iv) prohibit the child from
visiting, frequenting or appearing at a
specified place; or

(v)
undergo
a
de-addiction
programme.

(3) Where the Board after
preliminary assessment under section 15
pass an order that there is a need for trial
of the said child as an adult, then the
Board may order transfer of the trial of
the case to the Children's Court having
jurisdiction to try such offences."

(emphasis supplied)

26. At this stage, it would also be
relevant to reproduce Sections 19 and 20 of
the Act, 2015 which deal with the powers
of Children's Court where the Board passes
an order that there is need for trial of the
child as an adult : -

"19. Power of Children's Court.
- (1) After the receipt of preliminary
assessment from the Board under section
15, the Children's Court may decide that-

(i) there is a need for trial of the
child as an adult as per the provisions of
the Code of Criminal Procedure, 1973 (2 of
1974) and pass appropriate orders after
trial subject to the provisions of this section
and section 21, considering the special
needs of the child, the tenets of fair trial
and
maintaining
a
child
friendly
atmosphere;

(ii) there is no need for trial of
the child as an adult and may conduct an
inquiry as a Board and pass appropriate
orders in accordance with the provisions
of section 18.

(2) ...

(3) The Children's Court shall
ensure that the child who is found to be in
conflict with law is sent to a place of safety
till he attains the age of twenty-one years
and thereafter, the person shall be
transferred to a jail:

...

(4) ...

(5) ...

20. Child attained age of twentyone years and yet to complete prescribed
term of stay in place of safety. - (1) When
the child in conflict with the law attains
the age of twenty-one years and is yet to
complete the term of stay, the Children's
Court shall provide for a follow up by the
probation officer or the District Child
Protection Unit or a social worker or by
itself, as required, to evaluate if such child
has undergone reformative changes and if
the child can be a contributing member of
722 INDIAN LAW REPORTS ALLAHABAD SERIES
the society and for this purpose the
progress records of the child under subsection (4) of section 19, along with
evaluation of relevant experts are to be
taken into consideration.

(2) After the completion of the
procedure specified under sub-section (1),
the Children's Court may-

(i) decide to release the child on
such conditions as it deems fit which
includes appointment of a monitoring
authority
for
the
remainder
of
the
prescribed term of stay;

(ii) decide that the child shall
complete the remainder of his term in a
jail:

Provided
that
each
State
Government shall maintain a list of
monitoring authorities and monitoring
procedures as may be prescribed."

(emphasis supplied)

27. A reading of the aforesaid
provisions shows that the Act, 2015 has an
overriding effect over any other law for the
time being in force in all matters
concerning the child in conflict with law
especially
in
matters
regarding
apprehension, detention, prosecution or
imprisonment of the child in conflict with
law. No waiver of the rights of the child
in conflict with law as provided under the
Act, 2015 is permissible and any nonexercise of fundamental right shall not
amount to waiver. Further, any person
who has committed an offence when he
was below the age of eighteen years shall
be treated as a child during the process of
inquiry even if he has completed eighteen
years of age when he was apprehended or
completes the age of eighteen years
during the course of inquiry by the Board
or the Children's Court or any other
agency.

28. A reading of Section 9 of the Act,
2015 shows that if a person accused of
committing an offence claims before a
court that he was a child on the date of
commission of the offence, the court shall
make an inquiry and after taking such
evidence as may be necessary, determine
the age of the person and shall record a
finding on the matter stating the age of the
person as nearly as may be. In case, the
court finds that the person was a child on
the date of commission of the offence, it
shall forward the child to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed by the court shall
be deemed to have no effect. It is apparent
from a reading of Sections 9(2) and 9(3) of
the Act, 2015 that the claim of being a
child shall be decided by the Court and not
the Board if the claim is raised before the
Court. The phrase 'appropriate orders' in
Section 9(3) refers to orders under Sections
14 and 18 of the Act, 2015 and does not
confer power on the Board to determine the
age of a person who raises his claim of
being a child before a Court. The Board has
the power to determine the age of the
person claiming himself to be a child only
in cases covered under Section 9(1) and
Section 10(1), i.e., when the child, after
being apprehended, is produced before the
Board or where the Magistrate under
Section 9(1) forwards the child to the
Board and not in cases covered under
Section 9(2) where the person alleged to
have committed the offence claims in a
'Court' that he was a child at the time of the
commission of offence.

29. The aforesaid view is supported by
the decision of the Supreme Court in
Rishipal Singh Solanki vs. State of Uttar
Pradesh & Ors. (2022) 8 SCC 602. The
observations of the Supreme Court in
Paragraph nos. - 33.1 to 33.2.2 of the
9 All. Pawan Kumar (Corpus) & Anr. Vs. State of U.P. & Ors.
723
aforesaid judgment are reproduced below :
-

33.
What
emerges
on
a
cumulative consideration of the aforesaid
catena of judgments is as follows:

33.1. A claim of juvenility may be
raised at any stage of a criminal
proceeding, even after a final disposal of
the case. A delay in raising the claim of
juvenility cannot be a ground for rejection
of such claim. It can also be raised for the
first time before this Court.

33.2. An application claiming
juvenility could be made either before the
Court or the JJ Board.

33.2.1.
When
the
issue
of
juvenility arises before a Court, it would
be under sub-section (2) and (3) of section
9 of the JJ Act, 2015 but when a person is
brought before a Committee or JJ Board,
section 94 of the JJ Act, 2015 applies.

33.2.2. If an application is filed
before the Court claiming juvenility, the
provision of sub-section (2) of section 94
of the JJ Act, 2015 would have to be
applied or read along with sub-section (2)
of section 9 so as to seek evidence for the
purpose of recording a finding stating the
age of the person as nearly as may be."

(emphasis supplied)

30. In the present case, the offence
was committed on 1.4.2017. The petitioner
no. 1 is an accused in the offence. The
offence alleged to have been committed is a
heinous offence as defined in the Act,
2015. A charge-sheet was filed in the case
on 21.5.2017. The case was committed to
trial on 5.7.2017 and the trial is, at present,
pending in the court of Additional Sessions
Judge / Special Judge (M.P. / MLA),
District
Allahabad.
The
claim
that
petitioner no. 1 was a child on the date the
offence was committed was raised by
petitioner no. 1 before the Court after
charges were framed and during trial. The
claim was not raised before the Magistrate.
The petitioner no. 1 was not produced
before the Board under Section 10(1). The
case of petitioner no. 1 is covered by
Section 9(2). There is nothing on record to
show as to whether the trial court has
passed any order under Section 9(2)
determining the age of petitioner no.1. The
trial court has not determined the age of
petitioner no. 1 as required under Section
9(2) but has, mechanically and in a routine
manner, through letter dated 18.7.2024
remitted the matter to the Board after
referring to the claim of petitioner no. 1.
There is no finding by the trial court
regarding the age of petitioner no. 1. The
letter dated 18.7.2024 of the trial court and
its contents cannot be considered an order.

31. In light of the observations made
before, the order dated 15.5.2025 passed by
the Board determining the age of petitioner
no. 1 is without jurisdiction and a nullity.
The order of the Board confers no right on
the petitioner no. 1. We cannot issue any
writ which would amount to enforcement
of the order of the Board.

32. A perusal of Section 10 show that
in no case can a child in conflict with law
be placed in a police lock up or lodged in a
jail. A person who claims himself to be a
child under the Act, 2015 can not be lodged
in a jail or police lockup even during
inquiry regarding his age either by the
Court or the Board.