# Saurabh Pandey &Anr v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 948
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-06
- **Case number:** Civil Misc. Habeas Corpus Writ Petition No. 672 of 2019
- **Bench:** Manoj Misra, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-pandey-anr-v-state-of-u-p-ors-44506
- **Pages:** 5

## Headnote

determine - Section 2(14), 37(1)(c) and
94
of
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 -
Primacy to be given to birth certificate
from school or matriculation certificate,
in absence thereof to certificate of
corporation/municipality/panchayat and
1 All. Saurabh Pandey & Anr. Vs. State of U.P. & Ors.
949
in absence of all these the medical
evidence be taken.

Child Welfare Committee found corpus minor as
per school certificate - Absence of averment
denying attendance of corpus in that school or
genuineness of Principal, who issued the
certificate - School certificate rightly relied upon -
Medical report is not liable to be considered -
Order of Child Welfare Committee placing
corpus, even pregnant, to Protection Home is
within power conferred by Section 37 of J.J. Act,

## Text

948 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned Counsel for the petitioner
has urged that there is no explanation of 15
days' delay i.e. from 16.9.2007 to
30.9.2007, as to why the report was sent by
the Senior Superintendent of Police after
15 days. One could understand that the
report could be sent by the Senior
Superintendent of Police within a day or
two, but he could not sit over the matter for
15 days and send his report to the District
Magistrate after 15 days. Further, from the
counter affidavit of the District Magistrate,
it is dear that there is no explanation given
in the counter affidavit for the delay from
16.9.2007 to 30.9.2007.

5. The Apex Court in Rajammal v.
State of Tamil Nadu, has held that unexplained delay of five days was fatal
and the decision order would bad in law
and
contrary
to
the
constitutional
obligation on the Central Government to
consider and decide the representation
of the detenu without any delay.

6. In Harish Pahwa v. State of U.P.
the Supreme Court has taken the similar
view.

7. Similar view has been taken by the
Supreme Court in the case of Union of
India v. Harish Kumar, relied upon by the
learned Counsel for the petitioner.

8. For the aforesaid reasons, further
detention of the petitioner under the
National Security Act is held to be
illegal."

20. From the law noticed above, it is
clear that there should not be inordinate
delay in submitting comments on the
representation. Although, no specific time
limit can be fixed in that regard but,
ordinarily, 3 to 5 days may be considered
reasonable. However, when the delay
appears to be inordinate then explanation
must be offered by the authorities
concerned.

21. We find that the SHO concerned
took eight days to submit comments on
29.10.2018 when they were called from him
by the SSP on 20.10.2018. Taking eight
days to submit comments, particularly, by a
police station which had been the base
station from where recommendations for
detention emanated, in our view, is
inordinate for which an explanation was
necessary. As we find that there is no
explanation for this delay, despite this
Court's
order
dated
06.08.2019,
the
continued detention of the petitioner has
been rendered illegal. The petition is
therefore allowed. The petitioner shall be set
at liberty forthwith unless wanted in any
other case. There is no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J.

Civil Misc. Habeas Corpus Writ Petition No. 672
of 2019

Saurabh Pandey &Anr. ...Petitioners
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioners:
Sri Raj Kumar Singh, Sri Sunil Kumar
Singh

Counsel for the Respondents:
G.A.

A. Age of juvenile - Principles to
determine - Section 2(14), 37(1)(c) and
94
of
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 -
Primacy to be given to birth certificate
from school or matriculation certificate,
in absence thereof to certificate of
corporation/municipality/panchayat and
1 All. Saurabh Pandey & Anr. Vs. State of U.P. & Ors.
949
in absence of all these the medical
evidence be taken.

Child Welfare Committee found corpus minor as
per school certificate - Absence of averment
denying attendance of corpus in that school or
genuineness of Principal, who issued the
certificate - School certificate rightly relied upon -
Medical report is not liable to be considered -
Order of Child Welfare Committee placing
corpus, even pregnant, to Protection Home is
within power conferred by Section 37 of J.J. Act,
2015. (E-1)

(Delivered by Hon'ble Manoj Misra, J.
& Hon'ble Virendra Kumar Srivastava, J.)

1. Heard learned counsel for the
petitioners;
learned
A.G.A.
for
the
respondents 1 to 4 and perused the record.

2. This habeas corpus petition seeks
production
and
release
of
Pooja
(petitioner
no.2-corpus),
who,
since
02.03.2019, is in the care and protection
of Nari Niketan, Nidharia, Ballia pursuant
to order dated 02.03.2019 passed by Child
Welfare Committee, Ballia.

3. A perusal of the order dated
02.03.2019 passed by the Child Welfare
Committee, which is there on record as
Annexure 7 to the petition, reveals that
the Child Welfare Committee considered
it appropriate to place the corpus in the
care and protection of Nari Niketan upon
finding: that the date of birth of the corpus
is 10.08.2002; that a first information
report has been registered at P.S. Kotwali,
District Ballia as Case Crime No.475 of
2018, under Sections 363, 366, 120-B IPC
and Section 7/8 of Pocso Act, at the
instance of Dabloo Pandey, father of the
corpus, alleging that the corpus, who is
aged 16 years, has been enticed away by
the accused Saurabh Pandey (petitioner
no.1 herein); and that the corpus is
unwilling to go with her parents.

4. The learned counsel for the
petitioners has urged that from the
medical examination report of the victim
the corpus appears to be aged about 18
years and is pregnant, therefore she
cannot be sent to Nari Niketan against her
wishes.

5. The learned AGA has opposed the
petition by claiming that the corpus is
minor as per the date of birth recorded in
her educational certificate. It has been
urged that the age of a child victim is to
be determined by applying the principles
provided by Section 94 of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 (for short J. J. Act, 2015),
under which, primacy is to be accorded to
date of birth entered in educational
certificate over medical evidence.

6.

Having
noticed
the
rival
submissions,
before
we
proceed
to
address the issues, it would be apposite to
observe
that
the
Apex
Court
had
consistently been of the view that the
principles applicable for determining the
age of juvenile in conflict with law are to
be applied for determining the age of
child victim (vide Jarnail Singh Vs. State
of Haryana, (2013) 7 SCC 263; State of
M.P. Vs. Anoop Singh, (2015) 7 SCC
773;
and
Mahadeo
Vs.
State
of
Maharashtra, (2013) 14 SCC 637).

7. Section 94 of the J. J. Act, 2015
provides
for
presumption
and
determination of age. Sub-section (2) of
section 94 of the J. J. Act, 2015, which is
relevant, is extracted below:

"(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee
or the Board, as the case may be, shall
950 INDIAN LAW REPORTS ALLAHABAD SERIES
undertake
the
process
of
age
determination, by seeking evidence by
obtaining-

(i) the date of birth certificate from
the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in
the absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination test
conducted on the order of the Committee
or the Board shall be completed within
fifteen days from the date of such order."

8. From above, it is clear that
primacy is to be accorded to the date of
birth certificate from the school, or the
matriculation or equivalent certificate
from the concerned examination Board,
and, in the absence thereof, to the birth
certificate given by a corporation or
municipality or panchayat. Only in
absence of above evidence medical
evidence is to be taken.

9. Section 37 (1) (c) of the J. J. Act,
2015
empowers
the
Child
Welfare
Committee to place a child in need of care
and protection in a Children's Home or fit
facility for temporary care.

10. Section 2 (14) of the J. J. Act,
2015 defines a child in need of care and
protection. Clauses (iii), (viii) (xii) of subsection (14) of Section 2 of the J. J. Act,
2015 are relevant for the purpose of
deciding this case. The said clauses along
with the opening part of sub-section (14)
of section 2 of the J. J. Act, 2015 are
extracted below:

"Section 2(14) "child in need of
care and protection" means a child-

(i) to (ii)...................................

(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; or

(b) has threatened to kill, injure,
exploit or abuse the child and there is a
reasonable likelihood of the threat being
carried out; or

(c) has killed, abused, neglected or
exploited some other child or children
and there is a reasonable likelihood of the
child in question being killed, abused,
exploited or neglected by that person; or

(iv)
to
(vii).............................................

(viii) who has been or is being or is
likely to be abused, tortured or exploited
for the purpose of sexual abuse or illegal
acts; or

(ix) to (xi)..........................; or
(xii) who is at imminent risk of marriage
before attaining the age of marriage and
whose parents, family members, guardian and
any other persons are likely to be responsible
for solemnisation of such marriage;"

11. In Independent Thought v.
Union of India, (2017) 10 SCC 800, the
apex court after taking a conspectus of the
provisions contained in the Constitution
of India, the Indian Penal Code, the
Prevention of Children from Sexual
Offences Act, 2012 (Pocso Act) and the J.
J. Act, 2015, held as follows:
1 All. Saurabh Pandey & Anr. Vs. State of U.P. & Ors.
951

"107. On a complete assessment of the
law and the documentary material, it appears
that there are really five options before us: (i)
To let the incongruity remain as it is - this
does not seem a viable option to us, given that
the lives of thousands of young girls are at
stake; (ii) To strike down as unconstitutional
Exception 2 to Section 375 IPC - in the
present case this is also not a viable option
since this relief was given up and no such
issue was raised; (iii) To reduce the age of
consent from 18 years to 15 years - this too is
not a viable option and would ultimately be
for Parliament to decide; (iv) To bring the
POCSO Act in consonance with Exception 2
to Section 375 IPC - this is also not a viable
option since it would require not only a
retrograde amendment to the POCSO Act but
also to several other pro-child statutes; (v) To
read Exception 2 to Section 375 IPC in a
purposive manner to make it in consonance
with the POCSO Act, the spirit of other prochild legislations and the human rights of a
married girl child. Being purposive and
harmonious constructionists, we are of
opinion that this is the only pragmatic option
available. Therefore, we are left with
absolutely no other option but to harmonise
the system of laws relating to children and
require Exception 2 to Section 375 IPC to
now be meaningfully read as: "Sexual
intercourse or sexual acts by a man with his
own wife, the wife not being under eighteen
years of age, is not rape." It is only through
this reading that the intent of social justice to
the married girl child and the constitutional
vision of the Framers of our Constitution can
be preserved and protected and perhaps given
impetus."

12. In the instant case, the Child
Welfare Committee, by order dated
02.03.2019, directed the corpus to be
placed in Women Protection Home upon
finding her to be minor, with date of birth
10.08.2002, as per school certificate
obtained
from
the
Principal,
GovernmentBalikaInterCollege, Ballia.

13. In the writ petition, there is no
averment that the corpus never attended
the school. There is no averment that the
Principal whose certificate has been relied
upon is not Principal of the Institution
where the corpus had studied.

14. Under the circumstances, the
medical report pertaining to the age of the
corpus is not liable to be considered at
this stage and in these proceedings, in as
much as primacy is to be accorded to the
date of birth recorded in educational
certificate over medical evidence.

15. 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.

16. 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
952 INDIAN LAW REPORTS ALLAHABAD SERIES
take recourse to the remedy of an appeal
provided under Section 101 of the J. J. Act,
2015.

17. Subject to above, the petition is
disposed off.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ A(Rent Control) No. 11130 of 2019

Deepak Kumar Baijal ...Petitioner
Versus
Prescriberd Authority/Additional District
Magistrate-VII,Kanpur Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandan Sharma, Sri Piyush Sinha, Sri
Ravi Shankar Prasad.

Counsel for the Respondents:
C.S.C. Sri J.P. Singh, Sri Atul Dayal

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Sections 21(1)(a), 12(1) & (3). Vacancy
under Section 12 can be declared even if
an appeal against order of release is
pending.
Order passed by the R.C. &E.O. under Section
12 (3) challenged on the ground of jurisdiction
citing pendency of appeal against release
application. No prohibition under the U.P. Act
No. 13 of 1972 that if an appeal against the
order of release under Section 21(1)(a) of the
Act is pending then vacancy under Section 12
cannot be declared. (Para 11)

It is open to the landlord to file an application
under Section 21(1)(a) and also file an
application under Section 12(3) of the Act. The
landlord cannot be compelled to wait till such
time as the appeal is decided. (Para 11)
Precedent followed: -

1.Sarla Devi (Smt.) Vs. PushpaAgnihotri (Smt.)
2008 (2) ARC 725

2.Sukhant Gupta Vs. Rent Control and Eviction
Officer, Kanpur and another 1991 (2) ARC 445

3.Naubat Ram Sharma Vs. Addl. District Judge
IX, Moradabad and others, 1987 (2) ARC 121

4.Munnilal Vs. Prescribed Authority, Agra and
others, 1992 ACJ 789 (E-4)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Ravi Shankar Prasad,
learned Senior Advocate, assisted by Sri
Piyush Sinha, learned counsel for the
petitioner and Sri Atul Dayal, learned Senior
Advocate, assisted by Sri J.P. Singh, learned
counsel for the respondents.

2. The petitioner has filed today an
impleadment application dated 24.07.2019,
to implead the owner of the house, namely,
Sri Sanjay Mittal, son of late K.K. Mittal as
per detail mentioned in the prayer clause of
the application. The application is allowed.
Sri Sanjay Mittal is allowed to be
impleaded as respondent No.4.

3. This writ petition has been filed
under Article 226 of the Constitution of
India praying for the following relief:-

"(a) Issue a writ, order or
direction in the nature of certiorari
quashing the impugned order dated
07.06.2019 (Annexure - '1' to this writ
petition)
passed
by
the
Prescribed
Authority, respondent no.1.

(b) Issue a writ, order or direction
in the nature of mandamus commanding
upon the respondents not to interfere with the
peaceful possession of the petitioner in