# Smt. Guddi Devi & Anr v. State Of U.P. & Ors

- **Citation:** (2025) 12 ILRA 1129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-05
- **Case number:** Habeas Corpus Writ Petition No. 565 of 2025
- **Bench:** Salil Kumar Rai, Zafeer Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-guddi-devi-anr-v-state-of-u-p-ors-52792
- **Pages:** 13

## Text

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12 All. Smt. Guddi Devi & Anr. Vs. State Of U.P. & Ors.
1129
propounder and his brothers claimed
ownership of the agricultural land on the
basis of inheritance, being the legal heirs of
the deceased testator. No plea of ownership
on the basis of alleged Will was taken in
the above mutation proceedings. It is very
surprising that if the propounder was in
possession of the alleged Will and on the
basis of that Will, he became the owner of
the agricultural land after the death of the
testator, then why it was not mentioned in
the mutation application. It is all the more
surprising that the mutation application and
the alleged Will was drafted by the same
Advocate Mansha Ram, who was very well
aware about the existence of the alleged
Will at the time of moving the mutation
application before the revenue court, but
the fact of the existence of the alleged Will
and acquisition of ownership on the basis
of that Will, was never mentioned by the
Advocate while moving the mutation
application. This fact itself proves that at
the
time
of
moving
the
mutation
application on 12.12.2002, the alleged Will
was
not
in
existence
and
it
was
subsequently, put up to counter the
mutation application moved by the plaintiff
Smt. Sudha Srivastava, who had alleged
ownership of the disputed agricultural land
on the basis of earlier registered Will dated
20.9.1996 of the testator. It is also apparent
that the attesting witness Lalji being the
beneficiary of land, allegedly sold to him
by the propounder, was an interested
witness whose evidence does not inspire
confidence. It is further evident that the
reason assigned by the testator for revoking
his earlier Will are not at all convincing.

72. From the above circumstances
proved by cogent evidence, the propounder
of the alleged Will has not been able to
dispel
the
suspicious
circumstances
surrounding the execution of the alleged
Will. It is well settled that in such cases,
judicial conscience must be satisfied that
the alleged Will was indeed executed by
the testator and it was the last Will of the
testator, but in the present case, the judicial
conscience has not been satisfied. The
execution of the alleged Will is shrouded in
grave suspicion, which has not been
dispelled by the propounder to the
satisfaction of this Court.

73. In view of the above analysis, the
trial court has not erred in rejecting the
Probate application of the propounder of
the alleged Will dated 25.5.2002 and
allowing the Probate application of the
propounder of earlier Will dated 20.9.1996.
Accordingly, the instant appeals have no
merit and are liable to be dismissed.

74. Accordingly, First Appeal No.
1276 of 2023 and 1274 of 2023, are
dismissed. Costs easy.

75. The impugned judgement and
order of the trial court dated 18.10.2023 is
affirmed.
----------
(2025) 12 ILRA 1129
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ZAFEER AHMAD, J.

Habeas Corpus Writ Petition No. 565 of 2025

Smt. Guddi Devi & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Issue for Consideration
Whether
a
writ
of
Habeas
Corpus
is
maintainable against an order of the Child
Welfare Committee directing detention of the
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
corpus in a Government Children Home, and
whether the order dated 09.06.2025 declaring
the corpus to be a minor on the basis of school
transfer
certificate
without
following
the
procedure under Section 94 of the Juvenile
Justice (Care and Protection of Children) Act,
2015, was without jurisdiction and illegal.

Headnotes
Constitution of India - Art. 226 - Habeas
Corpus - Juvenile Justice (Care and
Protection of Children) Act, 2015 -
ss.2(12),
27(9),
29,
94
-
Age
determination
-
School
transfer
certificate - Photocopies - No proof - No
evidence
-
Mechanical
order
-
Jurisdiction of Child Welfare Committee -
Maintainability
of
Habeas
Corpus
-
Detention illegal - Release directed.

Held:

A writ of Habeas Corpus is not to be entertained
when a person is detained pursuant to an order
of a competent court which prima facie does not
suffer from lack of jurisdiction or absolute
illegality. However, if the order is without
jurisdiction,
wholly
illegal
or
passed
mechanically without application of mind, the
writ would be maintainable. The Full Bench
decision in Rachna v. State of U.P. does not bar
a petition for Habeas Corpus where the order of
the
Child
Welfare
Committee
is
without
jurisdiction or a nullity. [Paras 5-7]

Under Section 94 of the Act, 2015, age
determination requires obtaining date of birth
certificate from the school or matriculation
certificate and, in absence thereof, birth
certificate
from
local
authority
and
only
thereafter medical test. A transfer certificate or
entries in admission register are not date of
birth certificates within the meaning of Section
94(2)(i). Mere production of school records is
insufficient; the Committee, having powers of a
Judicial Magistrate under Section 27(9), must
take evidence and scrutinize the genuineness
and source of entries. [Paras 8-12]

The Child Welfare Committee relied only on
photocopies of transfer certificates and scholar
register without summoning and proving original
records, without examining the Headmaster on
oath regarding the source of entry of date of
birth
and
without
recording
any
finding
regarding genuineness. The father was also not
examined. The procedure under Section 94 was
not followed. [Paras 13-14]

In absence of proper age determination, the
essential condition for exercise of jurisdiction
under Sections 2(12), 29 of the Act, 2015 did
not exist. The order dated 09.06.2025 was
passed mechanically and without application of
mind, was without jurisdiction and a nullity.
[Para 14]

The medical report indicated the age of the
corpus to be 18 years or above. In absence of
any legally admissible contrary evidence, the
corpus was not a "child" under Section 2(12) of
the Act, 2015 and the Child Welfare Committee
had no jurisdiction to detain her. [Para 14]

Accordingly, writ of Habeas Corpus issued
directing immediate release of the corpus from
Government Children Home (Girls), Sindhi
Kheda Ashray Griha Paara, Lucknow. Petition
allowed. [Paras 15-16] (E-14)

Case Law Cited
Rachna and another v. State of U.P. and
others,
AIR
2021
All
109
(FB)
-
considered; Ummu Sabeena v. State of
Kerala, (2011) 10 SCC 781 - relied on;
Madhu Limaye, In re, (1969) 1 SCC 292 -
referred to; Manubhai Ratilal Patel v.
State of Gujarat, (2013) 1 SCC 314 -
relied on; P. Yuvaprakash v. State Rep. by
Inspector of Police, 2023 SCC OnLine SC
846 - relied on; Suresh v. State of Uttar
Pradesh and another, 2025 SCC OnLine SC
1579 - relied on.

List of Acts / Statutes
Constitution of India; Juvenile Justice (Care and
Protection of Children) Act, 2015; Juvenile
Justice (Care and Protection of Children) Rules,
2016; Bharatiya Nagarik Suraksha Sanhita,
2023.

List of Keywords
Habeas Corpus; Child Welfare Committee; Age
determination;
Transfer
certificate;
School
records; Mechanical order; Lack of jurisdiction;
Detention; Release of corpus.
12 All. Smt. Guddi Devi & Anr. Vs. State Of U.P. & Ors.
1131
Case Arising From
Order dated 09.06.2025 passed by the Child
Welfare Committee, Shahjahanpur declaring the
corpus to be a minor and directing her
placement at
Government
Children
Home
(Girls), Sindhi Kheda Ashray Griha Paara,
Lucknow, pursuant to Case Crime No. 95 of
2025 under Section 137(2) B.N.S., Police Station
concerned.

Appearance for Parties
For the Petitioners: Ashok Kumar Mishra;
Shivesh Mishra
For Respondents (State): G.A.

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

The present petition has been filed for
a writ of Habeas Corpus for release of
petitioner no. 1 from what is alleged to be
an
illegal
detention
by
the
State
respondents. The petitioners claim to be
married and that petitioner no. 2 is the
husband of petitioner no. 1.

It is claimed in the writ petition that
the date of birth of petitioner no. 1 is
01.01.2004
and
petitioners
married
according to Hindu Rites and Customs on
25.04.2025 at Arya Samaj, Damodar
Puram, Subhash Nagar, Bareilly. It has
been stated that petitioner no. 1 voluntarily
left her parental home and married
petitioner no. 2 and no force or coercion
was applied on her either to leave her
parental home or marry petitioner no. 2. On
27.04.2025, the respondent no. 4 who is the
father of petitioner no. 1 lodged a first
information report registering Case Crime
No. 95 of 2025 under Section 137 (2) of the
Bhartiya Nyay Sanhita, 2023 (hereinafter
referred to as 'BNS'). It was stated in the
first information report that petitioner no. 1
was aged 16 years and 9 months. The first
information report was challenged by the
petitioners before this Hon'ble Court
through Criminal Misc. Writ Petition No.
9227 of 2025 in which an order dated
08.05.2025 was passed restraining the
respondents from arresting the petitioners
for a period of two months. The relevant
portion of the order is reproduced below:-

"4. Be that as it may, the writ
petition is disposed off with a direction to
the Investigating Officer to record the
statement of the girl under Section 180
BNSS and also produce the petitioner No.1
before
the
concerned
Chief
Judicial
Magistrate for recording her statement
under Section 183 BNSS within two weeks
from today. In the event, the petitioner No.1
appears
before
the
concerned
Chief
Judicial
Magistrate
within
stipulated
period, the Chief Judicial Magistrate
concerned shall record her statement under
Section 183 BNSS and also ensure her
medical age determination and thereafter
the Investigating Officer shall proceed in
accordance with law.

5. For a period of two months,
the respondents are restrained to arrest the
petitioners pursuant to impugned first
information report."

 (Emphasis supplied)

In pursuance to the order dated
08.05.2025 passed by this Court, the
statement of petitioner no. 1 was recorded
under Section 180 BNSS wherein the
petitioner no. 1 stated that she was aged
about 21 years, had voluntarily gone with
the petitioner no. 2 and that petitioners had
married in Arya Samaj, Damodar Puram,
Subhash Nagar, Bareilly and were living as
husband and wife. Petitioner no. 1 was also
medically examined. The medical report
dated 28.05.2025 submitted by the Medical
Officer,
District
Women
Hospital,
Shahjahanpur reported that the radiological
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
age of petitioner no. 1 was 19 years. The
statement of petitioner no. 1 was also
recorded under Section 183 BNSS wherein
she reiterated her statement given under
Section
180
BNSS.
Subsequently,
petitioner no. 1 was produced before the
Child Welfare Committee, Shahjahanpur
which by its order dated 09.06.2025
declared that petitioner no. 1 was a minor
and
directed
that
she
be
kept
at
Government Children Home (Girls) Sindhi
Kheda Ashray Griha Paara, Lucknow. The
Child Welfare Committee while passing the
aforesaid order relied on the transfer
certificate issued by the Purva Madhyamik
Shankarpur Pitarhigh, Shahjahanpur which
noted the date of birth of petitioner no. 1 as
10.07.2008. The certificate was verified by
the Principal of the aforesaid institution
when the Principal was summoned by the
Child Welfare Committee. The Child
Welfare
Committee
held
that
while
determining the age of petitioner no. 1, the
date of birth as recorded in the school
records had to be given priority over
radiological
examination.
A
counter
affidavit on behalf of the respondent has
been filed by the Additional Government
Advocate annexing the different school
records and the medical report of petitioner
no. 1.

The writ petition was subsequently
amended including the prayer to quash the
order dated 09.06.2025 passed by the Child
Welfare Committee, Shahjahanpur.

It has been argued by the counsel for
the petitioners that petitioner no. 1 is major
as would be evident from the medical
report as well as her statement recorded
under Sections 180 and 183 BNSS and is
not a child as defined under the Juvenile
Justice (Care and Protection of Children)
Act, 2015. It was argued that the petitioners
are married according to Hindu rites and
the said marriage is a valid marriage under
the Hindu Marriage Act, therefore, the
father
of
petitioner
no.
1
had
no
guardianship rights over the petitioner no. 1
and the order of the Child Welfare
Committee dated 09.06.2025 is without
jurisdiction. It has been further argued that
the order dated 09.06.2025 has been passed
by
the
Child
Welfare
Committee
mechanically and without application of
mind. It has been argued that for the
aforesaid reason, the detention of petitioner
no. 1 at Government Children Home (Girls)
Sindhi
Kheda
Ashray
Griha
Paara,
Lucknow is illegal and without authority of
law. It was further argued that the order
dated 09.06.2025 passed by the Child
Welfare Committee is liable to be quashed
and writ is to be issued to release petitioner
no. 1.

Rebutting the argument of the counsel
for
the
petitioners,
the
Additional
Government Advocate has mainly argued
that the corpus is kept at Government
Children Home (Girls) Sindhi Kheda
Ashray Griha Paara, Lucknow on the
orders of the Child Welfare Committee
which is a Court, therefore, the present
petition for a writ of Habeas Corpus is not
maintainable. In support of his contention,
the AGA has mainly relied on the judgment
of Full Bench of this Court reported in
Rachna and Anr. vs. State of U.P. and
Ors. AIR 2021 All 109 (FB). It was argued
that under Section 94 of Act, 2015, the
school records have priority over medical
report and because the corpus is below 18
years of age and minor according to school
records,
therefore,
the
order
dated
09.06.2025 passed by the Child Welfare
Committee is in accordance with law and
there is no illegality in the aforesaid order
so as to occasion interference by this Court
12 All. Smt. Guddi Devi & Anr. Vs. State Of U.P. & Ors.
1133
under Article 226 of the Constitution of
India. It was argued that for the aforesaid
reasons, the writ petition is liable to be
dismissed.

We have considered the submission of
the counsel for the parties.

It would be appropriate that the
objections
of
the
AGA
to
the
maintainability of the present Habeas
Corpus petition be considered first.

The AGA argues that the Habeas
Corpus petition is not maintainable because
the corpus is detained at Government
Children Home (Girls) Sindhi Kheda
Ashray Griha Paara, Lucknow on the
orders of the Child Welfare Committee
which is a Court. The AGA relies on
Section 27 (9) of the Act, 2015 which
provides that the Child Welfare 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 I Class to argue that
the Child Welfare Committee is a Court. In
support of his contention, the AGA has
relied mainly on the judgment of the Full
Bench of this Court in Rachna and Anr.
(supra).

It has been observed by the Supreme
Court in Ummu Sabeena vs. State of
Kerela & Ors. (2011) 10 SCC 781 that
procedural safeguards given for protection
of personal liberty must be strictly
followed. The history of personal liberty is
a history of insistence on procedural
safeguards. It was observed by the Supreme
Court that the principal of Habeas Corpus
has been incorporated in our Constitutional
law and in a democratic republic, the
Judges owe a duty to safeguard the liberty
not only of the citizens but also of all
persons within the territory of India. The
most effective way of doing the same was
by way of exercise of power by the Court
by issuing a writ of Habeas Corpus. It was
further observed that the aforesaid facet of
the writ of Habeas Corpus makes it a writ
of the highest constitutional importance
being a remedy available to the lowliest
citizens
against
the
most
powerful
authority. It has been said that the writ of
Habeas Corpus is the key that unlocks the
door to freedom.

It is in the above background that we
shall consider the objections regarding the
maintainability of the present petition.

The issue as to whether a petition for
writ of Habeas Corpus was maintainable in
cases of detention by an order of the Court
was considered by the Supreme Court in
several cases and it has been held that a
writ of Habeas Corpus was not to be
entertained when a person is put to judicial
custody or police custody by the competent
Court by an order which prima facie did
not appear to be without jurisdiction or was
not passed in an absolutely mechanical
manner or was not wholly illegal. The
aforesaid implies that in case, the order of
the court was without jurisdiction or was
passed in an absolutely mechanical manner
or was wholly illegal, the petition for
Habeas Corpus would be maintainable and
a writ directing release of the detenue
would be issued. At this stage, it would be
relevant to consider two decisions of the
Supreme Court.

The
Supreme
Court
in
Madhu
Limaye, In re, (1969) SCC 292, while
considering the legality of the detention
after a judicial remand, observed that for
successfully opposing the petition for
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus, it was necessary for the
State to establish that at the stage of
remand, the Magistrate directed detention
in jail custody, after applying his mind to
all
relevant
matters.
Similarly,
in
Manubhai Ratilal Patel Tr.Ushaben vs.
State of Gujarat (2013) I SCC 314, the
Supreme Court considered the legality of
the
remand
orders
passed
by
the
Magistrate and dismissed the Habeas
Corpus petition after noting that there
was no illegality in the order passed by
the Magistrate remanding the accused to
judicial custody. The observations of the
Supreme Court in paragraph no. 24 and
25
of
the
aforesaid
judgment
are
reproduced below:-

24. The act of directing remand
of an accused is fundamentally a judicial
function. The Magistrate does not act in
executive capacity while ordering the
detention
of
an
accused.
While
exercising
this
judicial
act,
it
is
obligatory on the part of the Magistrate
to satisfy himself whether the materials
placed before him justify such a remand
or, to put it differently, whether there
exist reasonable grounds to commit the
accused to custody and extend his
remand. The purpose of remand as
postulated under Section 167 is that
investigation cannot be completed within
24 hours. It enables the Magistrate to see
that the remand is really necessary. This
requires the investigating agency to send
the case diary along with the remand
report so that the Magistrate can
appreciate the factual scenario and apply
his mind whether there is a warrant for
police remand or justification for judicial
remand or there is no need for any
remand at all. It is obligatory on the part
of the Magistrate to apply his mind and
not to pass an order of remand
automatically
or
in
a
mechanical
manner.

25. It is apt to note that in Madhu
Limaye, In re [(1969) 1 SCC 292 : AIR
1969 SC 1014] it has been stated that :
(SCC p. 299, para 12)

"12. Once it is shown that the
arrests made by the police officers were
illegal, it was necessary for the State to
establish that at the stage of remand, the
Magistrate directed detention in jail
custody after applying his mind to all
relevant matters."

 (Emphasis supplied)

It be noted that in the aforesaid
paragraphs,
the
Supreme
Court
has
observed that it was obligatory on the part
of the Magistrate to apply his mind and not
to pass an order of remand automatically or
in a mechanical manner. The condition that
an order shall not be passed in a
mechanical manner and should be passed
after application of mind is an essential
feature of a judicial order. The Supreme
Court in Manubhai Ratilal Patel(supra)
further observed in paragraph no. 31:-

"31.
...
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 B.
Ramchandra Rao [(1972) 3 SCC 256:
1972 SCC (Cri) 481: AIR 1971 SC 2197]
and Kanu Sanyal [(1974) SCC 141:1974
SCC (Cri) 280], the court is required to
scrutinize the legality or otherwise of the
12 All. Smt. Guddi Devi & Anr. Vs. State Of U.P. & Ors.
1135
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.

...

...

..."

(Emphasis supplied)

It is apparent from the observations of
the Supreme Court reproduced above that
in a Habeas Corpus petition, the legality of
a 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.

The judgment of the Full Bench of this
Court in Rachna and Anr. (supra) which
has been relied upon by the AGA does not
hold that a petition for Habeas Corpus
would not be maintainable even in
circumstances where an order passed by the
Child
Welfare
Committee
would
be
without jurisdiction and a nullity or where
the order has been passed mechanically and
without application of mind.

In the present case, the Child Welfare
Committee has passed the order detaining
the corpus, i.e., petitioner no. 1 on the
ground that the corpus was a child and her
date of birth is 10.07.2008 relying on the
transfer certificates of Class V and VII and
the
scholar
register
of
the
Purva
Madhyamik
Vidyalaya
Shankarpur
Pitarhigh,
Shahjahanpur.
The
medical
report indicates that the age of petitioner is
above 19 years.

Child has been defined under Section
2(12) of the Act, 2015 to mean a person
who has not completed 18 years of age.
Under Section 29 of the Act, 2015, the
Child
Welfare
Committee
has
been
empowered to dispose of cases for the care,
protection, treatment, development and
rehabilitation of children in need of care
and protection, as well as to provide for
their basic needs and protection. The
definition of "child in need of care and
protection" is not relevant in the present
case. The issue in the present case is as to
whether the corpus, i.e., the petitioner no. 1
is a child as defined in Section 2 (12) of the
Act, 2015 and thus covered by Section 2
(14) and whether the Child Welfare
Committee had the jurisdiction to take the
corpus, i.e., the petitioner no. 1 under its
protection and custody and act in exercise
of powers under Section 29 of the Act,
2015. The decision on the issue is
dependent on the determination of age of
the corpus, i.e., the petitioner no. 1.

Rule 19 (2) of the Juvenile Justice
(Care and Protection of Children) Rules,
2016 states that in any inquiry as to
whether any person produced before it was
a child in need of care and protection, the
Committee shall, prima facie, determine the
age of child in order to ascertain its
jurisdiction pending further inquiry as per
Section 94 of the Act, if need be. Section
94 of the Act, 2015 is reproduced below:-

"94.
Presumption
and
determination of age.-(1) Where, it is
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said
person is a child, the Committee or the
Board shall record such observation
stating the age of the child as nearly as
may be and proceed with the inquiry under
section 14 or section 36, as the case may
be, without waiting for further confirmation
of the age.

(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
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.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person."

(Emphasis supplied)

A reading of Section 94 of the Act,
2015 shows that the Committee shall
undertake the process of age determination
by seeking evidence, first by obtaining the
date of birth certificate from the school, if
available, and in absence thereof, the birth
certificate given by the local body, and in
absence of birth certificates, the age shall
be determined by the latest medical age
determination test conducted on the orders
of the Committee. Mere production of the
school records would not be sufficient for
the Committee to determine the age of the
person produced before it. As provided in
Section 27 (9) of the Act, 2015, the Child
Welfare Committee has powers conferred
by the Code of Criminal Procedure, 1973
on the Judicial Magistrate of I Class. The
Committee, thus, has the power to take
evidence on oath and to scrutinize the
evidence
produced
before
it.
The
Committee has to act judicially. In case the
Child Welfare Committee fails to scrutinize
evidence and passes a mechanical order
accepting the school records produced
before it without any application of mind
and without the records being proved as
required in law, the order of the Child
Welfare Committee would be absolutely
illegal and a Habeas Corpus petition would
lie before the Court for release of the
person who has been taken in its custody
by the Child Welfare Committee.

A reading of Section 94(2) of the Act,
2015 also shows that the school records,
i.e., entries in the admission register or in
the
transfer
certificate
are
not
the
documents stipulated in the aforesaid
12 All. Smt. Guddi Devi & Anr. Vs. State Of U.P. & Ors.
1137
provision as evidence of the date of birth of
the person produced before the Committee.
Section 94(2) (i) provides that date of birth
certificate shall be obtained from the
school. A transfer certificate or entries in
the admission register of the school are not
date of birth certificates. In our aforesaid
view, we are supported by the judgment of
Supreme Court in P. Yuvaprakash vs. State
Rep. by Inspector of Police 2023 SCC
OnLine SC 846.

In the aforesaid case, the school
transfer certificate was produced to prove
the age of the child. The Supreme Court
held that a school transfer certificate cannot
be relied upon to determine the age of child
under the Act, 2015. In this context, the
observation of the Supreme Court in
paragraph nos. 14, 18 and 19 of the
aforesaid judgment are reproduced below:-

"14. Section 94 (2)(iii) of the JJ
Act clearly indicates that the date of birth
certificate from the school or matriculation
or equivalent certificate by the concerned
examination board has to be firstly
preferred in the absence of which the birth
certificate issued by the Corporation or
Municipal Authority or Panchayat and it is
only thereafter in the absence of these such
documents the age is to be determined
through "an ossification test" or "any
other latest medical age determination
test" conducted on the orders of the
concerned authority, i.e. Committee or
Board or Court. In the present case,
concededly, only a transfer certificate and
not the date of birth certificate or
matriculation or equivalent certificate was
considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the
victim as 11.07.1997.

....

....

....

Since it did not answer to the
description of any class of documents
mentioned in Section 94(2)(i) as it was a
mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was
below 18 years at the time of commission
of the offence.

18. Reverting to the facts of this
case, the headmaster of M's School, CW- 1,
was summoned by the court and produced
a Transfer Certificate (Ex.C-1). This
witness produced a Transfer Certificate
Register containing M's name. He deposed
that she had studied in the school for one
year, i.e., 2009-10 and that the date of birth
was based on the basis of the record sheet
given by the school where she studied in
the 7th standard. DW-2 TMT Poongothoi,
Headmaster
of
Chinnasoalipalayam
Panchayat School, answered the summons
served by the court and deposed that 'M'
had joined her school with effect from
03.04.2002 and that her date of birth was
recorded as 11.07.1997. She admitted that
though the date of birth was based on the
birth certificate, it would normally be
recorded on the basis of horoscope. She
conceded to no knowledge about the basis
on which the document pertaining to the
date of birth was recorded. It is stated
earlier on the same issue, i.e., the date of
birth, Thiru Prakasam, DW-3 stated that
the birth register pertaining to the year
1997 was not available in the record room
of his office.

19. It is clear from the above
narrative that none of the documents
produced during the trial answered the
description of "the date of birth certificate
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
from the school" or "the matriculation or
equivalent certificate" from the concerned
examination board or certificate by a
corporation, municipal authority or a
Panchayat. In these circumstances, it was
incumbent for the prosecution to prove
through
acceptable
medical
tests/examination that the victim's age was
below 18 years as per Section 94(2)(iii) of
the JJ Act. PW-9, Dr. Thenmozhi, Chief
Civil Doctor and Radiologist at the
General Hospital at Vellore, produced the
X-ray reports and deposed that in terms of
the examination of M, a certificate was
issued stating "that the age of the said girl
would be more than 18 years and less than
20 years". In the cross-examination, she
admitted that M's age could be taken as 19
years. However, the High Court rejected
this evidence, saying that "when the
precise date of birth is available from out
of the school records, the approximate age
estimated by the medical expert cannot be
the determining factor". This finding is, in
this court's considered view, incorrect and
erroneous. As held earlier, the documents
produced, i.e., a transfer certificate and
extracts of the admission register, are not
what Section 94 (2) (i) mandates; nor are
they in accord with Section 94 (2) (ii)
because DW-1 clearly deposed that there
were no records relating to the birth of the
victim, M. In these circumstances, the only
piece of evidence, accorded with Section 94
of the JJ Act was the medical ossification
test, based on several X-Rays of the victim,
and on the basis of which PW-9 made her
statement.
She
explained
the
details
regarding examination of the victim's
bones, stage of their development and
opined that she was between 18-20 years;
in cross-examination she said that the age
might be 19 years. Given all these
circumstances, this court is of the opinion
that the result of the ossification or bone
test was the most authentic evidence,
corroborated by the examining doctor, PW9."

(Emphasis supplied)

The Supreme Court in Suresh vs.
State of Uttar Pradesh and Anr. 2025 SCC
OnLine SC 1579 while considering Rule
12 (3) of the rules framed under The
Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to
as 'Act, 2000') held that the entries in the
school records would not be acceptable to
determine the age of girl on the testimony
of the school's Headmaster in case the date
of birth in the school records has been
entered on the oral representation of the
parents of the person claiming juvenility.
Observations of the Supreme Court in
paragraph nos. 21, 23, 24 and 25 of the
aforesaid judgment are reproduced below:-

21. There is no dispute on the
factum that Kaushik Modern Public School,
Khurgaon - the first attended school - is
not a Government School and thus, the
records maintained by the said School
would
not
be
'public
documents'.
Moreover, the Headmaster/Principal of
such School cannot be said to be a 'public
servant' for the purposes of the Evidence
Act. The Headmaster when examined has
himself taken the stand that Kaushik
Modern Public School, Khurgaon was only
a State Government-recognized school.

23. Even otherwise, in the case
at hand, except for the Headmaster's sole
testimony, there is no material to establish
that the date 18.04.1995 as Respondent
No.2's date of birth, as recorded in the
certificate issued by Kaushik Modern
Public School, Khurgaon, was correct. As
a matter of fact, the Principal in his cross-
12 All. Smt. Guddi Devi & Anr. Vs. State Of U.P. & Ors.
1139
examination
stated
that
when
the
Respondent No.2 was leaving the school on
that day after making cutting he had
written the correct date of birth. Moreover,
the Principal has also stated that the birthdate entry was made on the basis of an
oral representation alone by Respondent
No.2's father and when he was asked for
the horoscope or any other document in
support of the date of birth of the
Respondent No.2, nothing was submitted.
This, in our view, discredits the certificate
issued by the Kaushik Modern Public
School, Khurgaon. As noted hereinbefore,
the other school certificates were issued
following this and therefore, meet the same
fate inasmuch as they cannot be treated as
correct, in the face of conflicting public
records and public documents as also the
Medical Report which state to the contrary.

...

...

...

24. Rule 12(3)(a) of the Rules
lays down the sequential list of certificates
to be examined and the order thereof. As no
'matriculation or equivalent certificates'
were available under Rule 12(3)(a)(i) of
the Rules, thus under Rule 12(3)(a)(ii) of
the Rules, 'date of birth certificate from the
school (other than a play school) first
attended' was attracted and certificate issued
by Kaushik Modern Public School, Khurgaon
was taken as conclusive proof of date of
birth. However, the deposition of the School's
Headmaster, especially to the effect that the
birth-date was noted as per an oral
representation by Respondent No.2's father,
makes the said certificate unreliable. Moving
on, Rule 12(3)(a)(iii) and Rule 12(3)(b) of the
Rules,
respectively,
provide
for
'birth
certificate given by a corporation or a
municipal authority or a panchayat' and
'only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be
sought from a duly constituted Medical
Board, which will declare the age of the
juvenile or child.'

25.
From
an
overall
circumspection
of
all
the
facts
and
circumstances
surrounding
the
case,
including the Rules, the picture which
emerges is that on the one hand, there is the
certificate backed by the testimony of the
Headmaster of the first school (which as
indicated supra notes that the recordal was
made on the oral say-so of Respondent
No.2's father) relating to the date of birth and
the
three
consequentially-made/issued
certificates, whereas on the other hand, there
exists a statutory document, being a public
record and a public document, in Form (A)
under Rule 2 of the Rules framed under the
U.P. Panchayat Raj Act, 1947 disclosing the
year of birth of Respondent No.2 as 1991 as
also the entry in the Voters' List for the
Legislative Assembly of the year 2012 and
the Medical Report apropos the age of
Respondent No.2 given by the Chief Medical
Officer, Muzaffarnagar, who opined that
Respondent No.2 was aged about 22 years
on 01.12.2012. As such, the certificate
issued by Kaushik Modern Public School,
Khurgaon could not have been taken as
conclusive proof of date of birth of
Respondent No.2, discarding Form (A)
under Rule 2 of the Rules under the U. P.
Panchayat Raj Act, 1947; the entry in the
Voters' List for the Legislative Assembly of
the year 2012, and; the Medical Report. On
the basis of the latter three documents, it is
clear that Respondent No.2 cannot be said
to have been a 'juvenile' on the date of the
unfortunate incident."

(Emphasis supplied)
1140 INDIAN LAW REPORTS ALLAHABAD SERIES

A
perusal
of
the
order
dated
09.06.2025 would show that the documents
relied
upon
by
the
Child
Welfare
Committee were photo copies of school
documents referred above and the original
records
were
not
produced
by
the
Headmaster of the institution even though,
the
Child
Welfare
Committee
had
summoned the original documents. There is
nothing on record to indicate that any
evidence was taken from the Headmaster of
the institution to verify the photo copies
produced
before
the
Child
Welfare
Committee. There is also nothing on record
to indicate as to how and on whose
representation, the date of birth of the
corpus, i.e., petitioner no. 1 was entered in
the school records. Apparently, while
determining the age of the corpus, i.e., the
petitioner no. 1 and while holding that the
corpus was a minor, therefore, a child as
defined under Section 2(12) of the Act,
2015 and was a child in need of care and
protection, the Child Welfare Committee
has not taken any evidence and has not
followed the procedure prescribed in
Section 94 of the Act, 2015.

In the present case, the Child Welfare
Committee has not recorded any finding as
to the genuineness of the school records
produced before it. There is nothing on
record disclosing the source of entries
made in the school record and the
reliability of such source. The entries in
school record were also not proved as
required by law. The Child Welfare
Committee has also not taken the evidence
of the Principal of the institution to verify
the school records produced before it. The
father of the corpus was also not called by
the Child Welfare Committee to verify the
age of the corpus. It is apparent that there is
no determination of the age of the corpus
by the Child Welfare Committee. The
essential condition for holding that the
corpus is a minor and below 18 years of
age, i.e., a child as defined under Section 2
(12) of the Act, 2015 and the Child Welfare
Committee has the jurisdiction to take the
corpus under its care and protection or in
custody do not exist. The order passed by
the Child Welfare Committee has been
passed mechanically and without any
application of mind. The order dated
09.06.2025 is without jurisdiction and
nullity. The detention of the petitioner in
09.06.2025 is without jurisdiction.

There is no other document on record
except the medical report, to determine the
age of the corpus. The medical test
determining the age of petitioner no.1
indicates that the age of corpus, i.e.,
petitioner no. 1 is 18 years or above and is,
therefore, not a child as defined in Section
2(12) of Act, 2015. The Child Welfare
Committee has no jurisdiction to take the
corpus, i.e., petitioner no. 1 under its care
and protection or keep her in Government
Children's Home or anywhere else.