# Smt. Rekha v. State of U.P

- **Citation:** (2025) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-20
- **Case number:** Criminal Misc. Bail Application No. 25993 of 2024
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-v-state-of-u-p-52961
- **Pages:** 37

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 302 & 201 - Code of
Criminal Procedure, 1973 - Section 309 -
Constitution of India, 1950 - Articles
15(3), 21, 21-A, 45, 47, 39(e) & 39(f) -
Juvenile Justice (Care and Protection of
Children) Act, 2015 - Sections 2(14) (v), 2
(22), 2(21), 30, 31 & 37 - Right of
Children
to
Free
and
Compulsory
Education Act, 2009 - Sections 2(d), 3, 4,
13, 14 & 15 - UP Jail Manual, 2022 - Rule
335, 336, 337, 339 - Model Prison Manual,
2016 - Rules 26.36 to 26.44 - Legal
Services Authorities Act, 1987 - Sections
2(c), 12 & 13 - Bail - Issue before Court
was
education,
welfare,
holistic
environment for growth, development of
strong moral fabric and ethical framework
in children of jail inmates who reside in
jails with them - Applicant was in jail
since 16.10.2023 - Bail application was
rejected by trial court on 14.05.2024 -
Applicant's 5 year old son was residing
with her in prison after her incarceration
and entirely dependent on her. (Para 4)

Held, applicant has been identified as
principal offender who murdered her
minor step child and threw his body in
tank situated in house and dead body was
recovered at pointing out of her
-
Applicant had motive to commit offence
which
was
grave
-
Likelihood
that
applicant had committed offence - No case
for bail was made out - Thus, directions to
trial court to expedite trial and also to
concern officers to prepare child care plan
for son of applicant within two months
after
due
consultation
with
various
authorities and experts. (Para 93, 96, 114)

Bail application dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,998 of 117,160. This is a partial read: ask again with offset=39998 for what follows._

1 All. Smt. Rekha Vs. State of U.P.
17
co-accused and from the vehicle in
question, I do not find any reasonable
ground in terms of Section 37 of NDPS Act
to release the applicant on bail. Moreover,
there
are
five
other
criminal
cases
registered against the applicant and the
recovery made is above the commercial
quantify.

29. Thus, taking into account the
submission made by learned counsel for the
parties and the evidence on record and the
complicity of the applicant in offence in
question, this Court do not find any ground
to release the applicant on bail.

30. In the result, the bail application
stands rejected.
----------
(2025) 1 ILRA 17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 25993 of
2024

Smt. Rekha ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Rahul Upadhyay

Counsel for the Opposite Party:
G.A., R.P.S. Chauhan

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 302 & 201 - Code of
Criminal Procedure, 1973 - Section 309 -
Constitution of India, 1950 - Articles
15(3), 21, 21-A, 45, 47, 39(e) & 39(f) -
Juvenile Justice (Care and Protection of
Children) Act, 2015 - Sections 2(14) (v), 2
(22), 2(21), 30, 31 & 37 - Right of
Children
to
Free
and
Compulsory
Education Act, 2009 - Sections 2(d), 3, 4,
13, 14 & 15 - UP Jail Manual, 2022 - Rule
335, 336, 337, 339 - Model Prison Manual,
2016 - Rules 26.36 to 26.44 - Legal
Services Authorities Act, 1987 - Sections
2(c), 12 & 13 - Bail - Issue before Court
was
education,
welfare,
holistic
environment for growth, development of
strong moral fabric and ethical framework
in children of jail inmates who reside in
jails with them - Applicant was in jail
since 16.10.2023 - Bail application was
rejected by trial court on 14.05.2024 -
Applicant's 5 year old son was residing
with her in prison after her incarceration
and entirely dependent on her. (Para 4)

Held, applicant has been identified as
principal offender who murdered her
minor step child and threw his body in
tank situated in house and dead body was
recovered at pointing out of her
-
Applicant had motive to commit offence
which
was
grave
-
Likelihood
that
applicant had committed offence - No case
for bail was made out - Thus, directions to
trial court to expedite trial and also to
concern officers to prepare child care plan
for son of applicant within two months
after
due
consultation
with
various
authorities and experts. (Para 93, 96, 114)

Bail application dismissed. (E-13)

List of Cases cited:

1. Ramu Vs St. of U.P., 2024 SCC OnLine All
4618

2. Anil Gaur @ Sonu @ Sonu Tomar Vs St. of
U.P., 2022 SCC OnLine All 623

3. Junaid Vs St. of U.P., 2021 (6) ADJ 511

4. Aman Vs St. of U.P., 2023 (8) ADJ 523

5. Bhanwar Singh @ Karamvir Vs St. of U.P.,
2023 SCC OnLine All 734

6. Noor Alam Vs St. of U.P., 2024 (5) ADJ 766
18 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Anurudh Vs St. Of U.P., 2024 (8) ADJ 469

8. Avinash Mehrotra Vs U.O.I.& ors., 2009 (6)
SCC 398, (Para 28, 30, 32, 33)

9. R.D. Upadhyay Vs St. of A.P., (2007) 15 SCC
337, (Para 45)

10. Pratap Singh Vs St. of Jharkhand, 2005 (3)
SCC 551, (Para 63.A)

11. Rajiv Kumar Vs St. of U.P., 2019 (4) ADJ
316, (Para 38, 39)

12. M.C. Mehta Vs St. of T.N., 1996 (6) SCC 756,
(Para 17)

13. In Re: Right to Privacy of Adolescents, 2024
SCC OnLine SC 2055, (Para 28.2, 29.1)

14. Sheela Barse Vs Children's Aid Society, 1987
(3) SCC 50, (Para 5)

15. Lakshmi Kant Pandey Vs U.O.I., 1984 (2)
SCC 244, (Para 6, 7)

16. Jan Adalat, Centre of Para-Legal Services
and Legal Aid A Society Vs St. of Maharashtra,
Through
Secretary,
Home
Development
Department, 2017 SCC OnLine Bom 239, (Para
38)

17. Babul Khan Vs St. of Karnataka, 2020 SCC
OnLine Kar 3438, (Para 96)

18. Sumpurnanand Vs St. of U.P. reported at
2018 (11) ADJ 550, (Para 32 to 35)

19. Oil and Natural Gas Commission & anr.Vs
Collector of Central Excise, 1995 Supp (4) SCC
541, (Para 3, 4)

20. Oil & Natural Gas Commission Vs
Collector of Central Excise, 2004 (6) SCC
437, (Para 3)

21. Elizabeth Jacob Vs District Collector, Idukki
& ors., 2008 (15) SCC 166, (Para 19)

22. Society for enlightenment and voluntary
Action & anr. Vs U.O.I., 2024 SCC OnLine SC
2922, (Para 3)

23. Junaid Vs St. of U.P., 2021 (6) ADJ 511,
(Para 58)

24. The New India Assurance Comp. Ltd. Vs Sri
Yamin & ors., 2023 (10) ADJ 421, (Para 48 to
51)

25. Junaid Vs St. of U.P. & anr., 2021 SCC
OnLine All 463 (Para 42)

26. Rajendra Prasad Vs St. of U.P., Criminal
Misc. Bail Application No. 30292 of 2024, (Para
9, 10, 13)

27. Bhanwar Singh @ Karamvir Vs St. of U.P.,
2023 SCC OnLine All 734

28. Jitendra Vs St. of U.P., Criminal Misc. Bail
Application No. 9126 of 2023

29. Noor Alam Vs St. of U.P., 2024 (5) ADJ 766

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgement is being structured
in the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Submissions of learned
counsels for the parties

III
Legal issues arising in
this
case
&
Bail
Jurisdiction

IV
Children:

A
General

B
Constitution
and Children

C
Education and
Holistic
Development
of Children

D
International
Instruments
V
Children in Jail : Invisible trial and caged
childhood
-
A Study
VI
Statutory Framework:

A
Juvenile
Justice
(Care
&
Protection
of
Children)
Act, 20151

B
The Right of
Children
to
1 All. Smt. Rekha Vs. State of U.P.
19
Free
and
Compulsory
Education Act,
20092

C
UP
Jail
Manual, 2022

D
The
Model
Prison Manual,
2016

E
Legal Services
Authorities
Act, 1987

F
Constitutional
law discourse :
Case Laws
VII

A
Child
Protection
System: Duties
of stakeholders
& Directions

B
Training
of
stakeholders

C
Response
of
the
State
Government
and achieving
concert
between
different
departments
VIII
Implementation of Law
and Role of Courts :
Junaid Vs. State of U.P.3
and Rajendra Prasad Vs.
State of U.P.4

IX
Order in Bail Application

A
Merits of bail
and directions
to
expedite
trial

B
Directions
to
create a child
care plan and
realize
the
rights of the
applicant's
minor child
X
Circulation of copies for
compliance

I. Introduction

1. Rights of children who get confined
to jail with their parents consequent to
rejection of bail of the latter arise for
consideration in this case (apart from other
grounds for bail).

II. Submissions of learned counsels
for the parties

2. Shri Rahul Upadhyay, learned
counsel for the applicant made the
following submissions:

i. The applicant's son who is 5
years of age is residing with her in prison
after her incarceration. The rights of the
applicant's child flowing from Article 21-A
of the Constitution of India read with other
beneficial legislations are being violated on
account of his confinement in prison.

ii. The prison does not have
requisite support systems to ensure the
holistic growth of the minor child as
contemplated in the aforesaid provisions of
law.

iii. In view of the above the jail
stay will cast a shadow on the child's life
and mar his future.

iv. The applicant is entitled to
bail on this ground alone.

Submissions on behalf of State

3.
Shri
Ashok
Mehta,
learned
Additional Advocate General assisted by
Shri Paritosh Kumar Malviya, learned
AGA-I made the following submissions:

I. The State Government have an
unconditional commitment to provide a
congenial environment and build adequate
support systems as contemplated under the
Constitution and in various beneficial
legislations for children who reside in jail
consequent to imprisonment of their5
parent.

II. The State Government shall
make
all
endeavours
to
realize
the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
fundamental rights of the said class of
children as enunciated in holdings of
constitutional courts and the rights vested
by applicable statutory enactments.

III. The State are conscious of the
fact that all children including those who
are residing in jail with their parents need
to be nurtured into dutiful citizens of the
country.

IV. Referencing the affidavit
filed on behalf of the State it is
contended that the State Government
will create the proper infrastructure,
activate statutory support systems and
provide all facilities to children as
directed earlier by this Court by order
dated 01.10.2024. The State Government
are taking steps to comply with the said
directions; and are not an adversarial
party to this litigation. Though it was
fairly submitted that full coordination
and
cooperation
between
different
departments is taking time.

III. Legal Issues arising in this case
& Bail Jurisdiction

4. The 5 year old son of the applicant
is entirely dependant on her. Denial of
bail to the applicant in the instant case
will cause the five year old child to
perforce reside in the jail premises with
her. Family circumstances and social
roots are among the criteria which are
factored in while deciding the bail
application of an accused.

5. The collateral damage inflicted
upon a child as a result of denial of bail to
their6 parent becomes most significant
when the child has to reside in prison with
the accused parent. The Court cannot shut
its eyes to the plight of such children
consequent to their confinement in jail by
default.

6. Every parent has a duty to ensure
the well-being, education and well rounded
development of their child. However,
parents cannot fulfil these obligations if
they are imprisoned. Each child has a
fundamental right to education, and an
environment
conducive
to
their7
development as a dutiful citizen of the
country. Neglect of rights of children who
suffer from such default confinement in jail
will reflect the failure of the State and
inadequacy
of
the
judicial
process.
Deprivation of rights of these children will
put a question mark on the ability of the
State and the capacity of the judicial
process to uphold the constitution and the
laws. Avoiding such germane issues which
squarely arise for consideration in bail
jurisdiction will amount to abdication of
judicial functions. Such course has been
abjured by good and consistent authorities
in point.

7. Fair administration of justice in bail
jurisdiction commands this Court to ensure
that adverse consequences accruing to the
child as a result of rejection of the bail
application of their parent (mother in this
case) are mitigated and the rights of minor
children of inmates residing in jails are
protected.

8. Constitutional status of this Court is
not denuded in bail jurisdiction. While
exercising bail jurisdiction various legal
issues may arise for consideration in the
facts and circumstances of a case which
directly impact fair administration of
justice.
The
Court
is
possessed
of
jurisdiction to determine such issues as per
law while deciding bail applications.

9.
Determining
such
issues
in
accordance with law for dispensing fair
justice in bail jurisdiction is enjoined by
1 All. Smt. Rekha Vs. State of U.P.
21
various
authorities
of
this
Court.
[Ref:Ramu Vs. State of U.P.8, Anil
Gaur @ Sonu @ Sonu Tomar v. State
of U.P.9, Junaid Vs State of U.P.10,
Aman Vs. State of U.P.11, Bhanwar
Singh @ Karamvir Vs. State of
U.P.12, Noor Alam Vs. State of
U.P.13 and Anurudh vs State Of
UP14 ]

Rights of Children : Constitutional
provisions
&
Statutory
and
Legal
Frameworks

IV(A). General

10. Children hold Nature's promise of
unquenchable optimism in a world riven by
constant strife. Children are the most
precious asset of humankind but also the
most vulnerable segment of human species.
The children have always been regarded a
separate class in law.

IV (B). Constitution and Children

11.
The
constitution
makers
acknowledged that children are the most
precious
assets
of
the
nation,
and
understood the special needs of children. A
distinct space for children was created in
the
Constitution.
Various
provisions
devoted to children in the Constitution
attest the paramount place accorded to the
welfare of children in our Constitutional
scheme.

12. The relevant provisions of the
Constitution of the India in this regard are
extracted hereunder:

I.
Article
15
(3)
of
the
Constitution of India enables the State
Government to make special provisions for
children:

"15(3) Nothing in this article
shall prevent the State from making any
special provision for women and children."

II.
Free
and
compulsory
education for children is mentioned as a
directive principle for formation of State
Policy. Article 45 of the Constitution of
India states thus:

"45. Provision for free and
compulsory education for children: The
State shall endeavour to provide, within a
period
of
ten
years
from
the
commencement of this Constitution, for
free and compulsory education for all
children until they complete the age of
fourteen years."

III.
Article
21-A
of
the
Constitution of India elevates the rights of
education of children between 6-14 of age
to a fundamental right.

"21(A) The State shall provide
free and compulsory education to all
children of the age of six to fourteen years
in such manner as the State may, by law,
determine.

IV. Article 47 of the Constitution
of India reads:

47. Duty of the State to raise the
level of nutrition and the standard of living
and to improve public health: The State
shall regard the raising of the level of
nutrition and the standard of living of its
people and the improvement of public
health as among its primary duties and, in
particular, the State shall endeavour to
bring about prohibition of the consumption
except
for
medicinal
purposes
of
intoxicating drinks and of drugs which are
injurious to health."

V. Article 39(e) and Article 39(f)
of the Constitution of India contemplate a
role of the State to protect children against
the scourge of exploitation and to create
opportunities and facilities for children to
develop into worthy citizens.
22 INDIAN LAW REPORTS ALLAHABAD SERIES

"39(e) that the health and strength
of workers, men and women, and the tender
age of children are not abused and that
citizens are not forced by economic
necessity to enter avocations unsuited to
their age or strength;

39 (f) that children are given
opportunities and facilities to develop in a
healthy manner and in conditions of
freedom and dignity and that childhood and
youth are protected against exploitation and
against moral and material abandonment."

IV(C). Children : Education and
Holistic Development

"If a nation expects to be ignorant
and free, in a state of civilization, it expects
what never was and never will be"
~Thomas Jefferson

13. Education is the bulwark of a
nation's freedom and the engine of
economic prosperity. Education has assured
the preservation of the human species, and
guarantees the advancement of human
civilization.

14. Education is not only book
learning imparted in a classroom to secure
employment. The concept of education is
wide enough to embrace various aspects of
human existence and touches every facet of
human life. The ability of the homo sapiens
to understand and evolve themselves by
knowing their place and relation to the
universe around them is also comprised in
education.

15. Education contemplates a holistic
environment which is congenial to the
growth of human faculties along the lines
of excellence. Inculcation of healthy
lifestyle habits, development of robust
ethical values and character, and imbibing
of vocational and academic knowledge
form part of a vision of education of any
nation ruled by law.

16.
Education
is
the
primary
instrument to achieve our constitutional
vision. Sarvepalli Radhakrishnan's view
that "The aim of government is not so
much efficiency as education is true for all
times" is a guiding factor in the nation's
governance.
Right
of
education
was
incorporated as a fundamental right under
Article 21A of the Constitution of India to
realize our constitutional goals succinctly
depicted in the Preamble. The legislature
also created comprehensive frameworks
and detailed mechanisms for realizing the
fundamental right to education by enacting
the Right to Education Act, 2009.

17. Children of jail inmates who reside
with the latter in prisons live in conditions
of confinement. The prison does not
provide
an
environment
for
holistic
development and impedes the growth of a
well rounded personality. The children are
cut off from the real world and are unable
to mix freely with their age group. They are
also susceptible to negative influences in
jail. Jail environment is not congenial for
the education of this class of children.
Infact the right to education guaranteed to
children by Article 21A of the Constitution
of India, and vested in them by Right to
Education Act, 2009 can be effectively
negated by the limiting conditions of jails.

18. The sacred place of education in
constitutional scheme and the pressing
necessity of providing the same to the
children of prisoners was elaborated thus by
the Supreme Court in Avinash Mehrotra
Vs. Union of India and others15:

"28. Education occupies a sacred
place within our Constitution and culture...
1 All. Smt. Rekha Vs. State of U.P.
23

30. In
the
years
since
the
inclusion of Article 21-A, we have clarified
that the right to education attaches to the
individual as an inalienable human right.
We have traced the broad scope of this
right
in R.D.
Upadhyay v. State
of
A.P. [(2007) 15 SCC 337 : AIR 2006 SC
1946] holding that the State must provide
education to all children in all places, even
in prisons, to the children of prisoners. We
have also affirmed the inviolability of the
right to education.
(emphasis supplied)

32. Education remains essential
to the life of the individual, as much as
health and dignity, and the State must
provide
it,
comprehensively
and
completely, in order to satisfy its highest
duty to citizens.

33. Unlike
other
fundamental
rights, the right to education places a
burden not only on the State, but also on
the parent or guardian of every child, and
on the child herself. Article 21-A, which
reads as follows, places one obligation
primarily on the State:

"21-A. Right to education.-The
State shall provide free and compulsory
education to all children of the age of six to
fourteen years in such manner as the State
may, by law, determine."
(emphasis supplied)

IV(D). International Instruments

19. The consensus of comity of
nations to improve the lives of children is
depicted in international instruments of law
relating to the rights of the children.

20.
While
acknowledging
the
applicability of international law to the
Juvenile Justice legislation, the Supreme
Court in Pratap Singh Vs. State of
Jharkhand16 held as under:

"63. The legislation relating to
juvenile justice should be construed as a
step for resolution of the problem of
juvenile justice which was one of tragic
human interest which cuts across national
boundaries. The said Act has not only to be
read in terms of the Rules but also the
Universal Declaration of Human Rights
and the United Nations Standard Minimum
Rules for the Protection of Juveniles."

21. This Court in Rajiv Kumar Vs.
State of U.P.17 had noted the development
of international law and the convergence of
international
legal
values
in
various
international instruments:

"38. The condition of children in
conflict with law engaged the concerns of
the world community. The concerns were
put in the consciousness of the international
community by the adoption of the Beijing
Rules in 1985 and the UN Standard
Minimum Rules for Administration of
Juvenile Justice.

39. The United Nations Standard
Minimum Rules For The Administration of
Juvenile Justice is a document which
reflects the consensus of international
opinion and convergence of values amongst
civilized nations. Infact, the United Nations
Standard
Minimum
Rules
For
The
Administration of Juvenile Justice is a
statement of universal values. The Juvenile
Justice Acts in India trace their origin to the
aforesaid international standards and other
UN Conventions on the subject. As will be
seen the courts have readily incorporated
the international treaties and conventions
into
the
corpus
of
our
case
law
jurisprudence."

22. Reference can also be profitably be
made to the judgment rendered by Supreme
Court in M.C. Mehta Vs. State of T.N.18 :
24 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. It would be apposite to
apprise
ourselves
also
about
our
commitment to world community. For the
case at hand it would be enough to note that
India has accepted the Convention on the
Rights of the Child, which was concluded
by the UN General Assembly on 20-111989.
This
Convention
affirms
that
children's rights require special protection
and it aims, not only to provide such
protection,
but
also
to
ensure
the
continuous improvement in the situation of
children all over the world, as well as their
development and education in conditions of
peace and security. Thus, the Convention
not only protects the child's civil and
political right, but also extends protection
to child's economic, social, cultural and
humanitarian rights."

V. Children in Jail : Invisible
Trial and caged childhood- A Study

23.
Various
expert
bodies
have
investigated the condition of children of
inmates residing in jails. A leading study in
this regard was conducted by Tata
Institute of Social Sciences, Mumbai19.
The relevant part of the said study
revealing how jail environment wreaks
havoc in the psyche of children, and blights
their lives is extracted hereinunder:

Caged
childhood:
Children
inside the prison with mothers

Just living is not enough... one
must have sunshine, freedom, and a little
flower.

Hans Christian Andersen

Contact with the adult criminal
justice system can be detrimental to
children and families. Living in custody
amongst women accused or convicted for
committing various crimes can never be
normal for any child of the tender age of
six years or below. The prison environment
is just not conducive for the holistic
development of children. Many children
who are born in prison never experience a
normal family life, sometimes till the
permitted
age
of
six
years.
The
confinement of children along with their
mothers leads to the confinement of their
psyche. Due to prolonged stay in a negative
and custodial environment, the socialisation
patterns of these children get severely
affected. The only image of male figures is
that of authoritative police and prison
officials. They are unaware of the concept
of a home, as normal children understand
it. The effect of their environment on their
psyche is so strong that boys may be found
impersonating and talking like the female
gender, having grown up only among
women confined in the female ward.
Unusual sights, like that of stray animals on
the road (seen on the way to court with the
mother) are frightening to them. There are
common instances of children getting
frequently
transferred
(due
to
overcrowding) with their mothers from one
prison to another, which leads to their
uprooting and unsettling. Such children
become
violent
and
aggressive,
or
alternatively, show withdrawn behaviour in
prison. They also become victims of
physical beatings by their mothers who
sometimes take out their frustrations on
their loved ones.

VI. Statutory Framework

24.
Statutory
frameworks
which
regulate and govern the rights of vulnerable
children and applicable to this case include
Juvenile Justice (Care and Protection of
Children) Act 201520, Legal Services
Authorities Act 1987, Right of Children to
Free and Compulsory Education Act
200921, UP Jail Manual 2022, and Model
Prison Manual, 2016.
1 All. Smt. Rekha Vs. State of U.P.
25

VI (A). Juvenile Justice (Care and
Protection of Children) Act, 2015

25. The JJ Act is a comprehensive
enactment provides for identification of
children who belong to marginalized
classes or are otherwise in need of care and
protection. The enactment also creates
authorities and mechanisms for bringing
the rights of children to fruition.

26. Parents who are in jail are unable
to take measures for well being of their
children. The said class of children are
within the ambit of Section 2(14) (v) of JJ
Act:

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

(v) who has a parent or guardian
and such parent or guardian is found to be
unfit or incapacitated, by the Committee or
the Board, to care for and protect the safety
and well-being of the child; or

Section
2
(22)
"Committee"
means
Child
Welfare
Committee
constituted under section 27

Section
2(21)
"child
care
institution" means Children Home, open
shelter, observation home, special home,
place of safety, Specialised Adoption
Agency and a fit facility recognised under
this Act for providing care and protection
to children, who are in need of such
services;"

27. Section 30 of the JJ Act prescribes
the functions and responsibilities of Child
Welfare Committee22. The legislative
intent of the provision is also to bring the
aforesaid category of children within the
scope of the duties of CWC:

"Section 30- The functions and
responsibilities of the Committee shall
include-

(i) taking cognizance of and
receiving the children produced before it;

(ii) conducting inquiry on all
issues relating to and affecting the safety
and well-being of the children under this
Act;

(iii) directing the Child Welfare
Officers or probation officers or District
Child Protection Unit or non-governmental
organisations
to
conduct
social
investigation and submit a report before the
Committee;

(iv)
conducting
inquiry
for
declaring fit persons for care of children in
need of care and protection;

(v) directing placement of a child
in foster care;

(vi) ensuring care, protection,
appropriate rehabilitation or restoration of
children in need of care and protection,
based on the childs individual care plan and
passing necessary directions to parents or
guardians or fit persons or childrens homes
or fit facility in this regard;

(vii)
selecting
registered
institution for placement of each child
requiring institutional support, based on the
childs age, gender, disability and needs and
keeping in mind the available capacity of
the institution;

(viii) conducting at least two
inspection visits per month of residential
facilities for children in need of care and
protection and recommending action for
improvement in quality of services to the
District Child Protection Unit and the State
Government;

(ix) certifying the execution of
the surrender deed by the parents and
ensuring that they are given time to
reconsider their decision as well as making
all efforts to keep the family together;
26 INDIAN LAW REPORTS ALLAHABAD SERIES

(x) ensuring that all efforts are
made for restoration of abandoned or lost
children to their families following due
process, as may be prescribed;

(xi)
declaration
of
orphan,
abandoned and surrendered child as legally
free for adoption after due inquiry;

(xii) taking suo motu cognizance
of cases and reaching out to children in
need of care and protection, who are not
produced before the Committee, provided
that such decision is taken by at least three
members;

(xiii)
taking
action
for
rehabilitation of sexually abused children
who are reported as children in need of care
and protection to the Committee by Special
Juvenile Police Unit or local police, as the
case may be, under the Protection of
Children from Sexual Offences Act, 2012
(32 of 2012);

(xiv) dealing with cases referred
by the Board under sub-section (2) of
section 17;

(xv) co-ordinate with the police,
labour department and other agencies
involved in the care and protection of
children with support of the District Child
Protection Unit or the State Government;

(xvi) in case of a complaint of
abuse of a child in any child care
institution, the Committee shall conduct an
inquiry and give directions to the police or
the District Child Protection Unit or labour
department or childline services, as the case
may be;

(xvii) accessing appropriate legal
services for children;

(xviii) such other functions and
responsibilities, as may be prescribed."

28. Section 31 of the JJ Act
contemplates production of children in
need of care before the CWC. Children of
prisoners who live in jails with the latter
are also liable to be produced before the
CWC. Jail authorities and the police
authorities fall within the description of
"any public servant" under the provision.

"31.
Production
before
Committee.-

(1) Any child in need of care and
protection may be produced before the
Committee by any of the following
persons, namely:-

(i) any police officer or special
juvenile police unit or a designated Child
Welfare Police Officer or any officer of
District Child Protection Unit or inspector
appointed under any labour law for the time
being in force;

(ii) any public servant;

(iii) Childline Services or any
voluntary or non-governmental organisation
or any agency as may be recognised by the
State Government;

(iv) Child Welfare Officer or
probation officer;

(v) any social worker or a public
spirited citizen;

(vi) by the child himself; or

(vii)
any
nurse,
doctor
or
management of a nursing home, hospital or
maternity home: Provided that the child shall
be produced before the Committee without
any loss of time but within a period of
twenty-four
hours
excluding
the
time
necessary for the journey.

(2) The State Government may
make rules consistent with this Act, to
provide for the manner of submitting the
report to the Committee and the manner of
sending and entrusting the child to children's
home or fit facility or fit person, as the case
may be, during the period of the inquiry."

29. The nature orders to be passed by
the CWC are enumerated in Section 37 of
the JJ Act:
1 All. Smt. Rekha Vs. State of U.P.
27

"37. Orders passed regarding a
child in need of care and protection.-

(1) The Committee on being
satisfied through the inquiry that the child
before the Committee is a child in need of
care and protection, may, on consideration
of Social Investigation Report 1 [***] and
taking into account the child's wishes in
case the child is sufficiently mature to take
a view, pass one or more of the following
orders, namely:-

(a) declaration that a child is in
need of care and protection;

(b) restoration of the child to
parents or guardian or family with or
without supervision of Child Welfare
Officer or designated social worker;

(c) placement of the child in
Children's
Home
or
fit
facility
or
Specialised Adoption Agency for the
purpose of adoption for long term or
temporary care, keeping in mind the
capacity of the institution for housing such
children,
either
after
reaching
the
conclusion that the family of the child
cannot be traced or even if traced,
restoration of the child to the family is not
in the best interest of the child;

(d) placement of the child with fit
person for long term or temporary care;

(e) foster care orders under
section 44;

(f)
sponsorship orders under
section 45;

(g) directions to persons or
institutions or facilities in whose care the
child is placed, regarding care, protection
and rehabilitation of the child, including
directions relating to immediate shelter and
services
such
as
medical
attention,
psychiatric
and
psychological
support
including
need-based
counselling,
occupational
therapy
or
behaviour
modification therapy, skill training, legal
aid,
educational
services,
and
other
developmental activities, as required, as
well as follow-up and coordination with the
District Child Protection Unit or State
Government and other agencies;

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

(2) The Committee may also pass
orders for-

(i) declaration of fit persons for
foster care;

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

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

30. The functions of CWC were set
forth by the Supreme Court in In Re:
Right to Privacy of Adolescents23 as
under:

"28.2 If a child is residing with a
person who has injured, exploited or
abused the child or has violated any other
law for the time being in force meant for
the protection of the child, the said child
becomes
a
child in need of care
and
protection. Thus, if a child who is a
victim of an offence under the POCSO
Act is residing with the accused, the child
becomes
a
child in need of care
and
protection. Even a child who has a parent
or guardian and if such parent or guardian
is
found to be
unfit to take
care of the
child, in such a case, the child is covered by
the
definition
under
sub-section
(14) of Section 2 of the JJ Act. Therefore,
the
CWC
has to exercise
the
power to provide
basic
needs
and
protection to such children in need of care
and protection.

29.1 Under clause (vi) of Section
30, it is the duty of the CWC to ensure
care, protection, appropriate rehabilitation
or
restoration of children in need of care
and protection based on the child's
28 INDIAN LAW REPORTS ALLAHABAD SERIES
individual care plan. The CWC cannot wait
till
the
children in need of care
and
protection are produced before it. Under
clause (xii) of Section 30, the CWC must
take suo motu cognizance of the cases and
reach out to the children in need of care and
protection. What is important here is clause
(xiii) of Section 30, which mandates that it
is the duty of the CWC to take action for
the
rehabilitation of sexually
abused
children who are children in need of care
and protection."

VI (B). Right of Children to Free
and Compulsory Education Act, 2009

31. The Right to Education Act, 2009
which was enacted in the aftermath of
Article 21A of the Constitution of India is
the legal instrument to carry out the
constitutional intent of providing for free
and compulsory education to all children in
the country.

32. Some of the provisions of the
Right to Education Act, 2009 relevant to
this case shall now be discussed.

33. The children who reside with their
parents in jail also suffer from various
disadvantages owing to their special and
adverse circumstances. The said children
come within the category of Section 2(d) of
Right to Education Act, 2009:

"2
(d)
"child
belonging
to
disadvantaged group" means [a child with
disability or] a child belonging to the
Scheduled Caste, the Scheduled Tribe, the
socially and educationally backward class or
such other group having disadvantage owing
to social, cultural, economical, geographical,
linguistic, gender or such other factor, as may
be specified by the appropriate Government,
by notification;

34. Section 3 vests the right of free and
compulsory education in children:

Section 3. Right of child to free
and compulsory education.

 [(1) Every child of the age of six to
fourteen years, including a child referred to in
clause (d) or clause (e) of section 2, shall
have the right to free and compulsory
education in a neighbourhood school till the
completion of his or her elementary
education.]

(2) For the purpose of subsection (1), no child shall be liable to pay any
kind of fee or charges or expenses which may
prevent him or her from pursuing and
completing the elementary education.

(3) A child with disability referred
to in sub-clause (A) of clause (ee) of section 2
shall, without prejudice to the provisions of
the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 (1 of 1996), and a
child referred to in sub-clauses (B) and (C) of
clause (ee) of section 2, have the same rights
to pursue free and compulsory elementary
education which children with disabilities
have under the provisions of Chapter V of the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995:

Provided that a child with "multiple
disabilities" referred to in clause (h) and a
child with "severe disability" referred to in
clause (o) of section 2 of the National Trust
for Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (44 of 1999) may also
have the right to opt for home-based
education.]"

35. Section 4 of Right to Education Act,
2009 contains special provisions for children
who are not admitted to or have not
completed elementary education:
1 All. Smt. Rekha Vs. State of U.P.
29

"Section 4. Special provisions
for children not admitted to, or who
have
not
completed,
elementary
education-

Where a child above six years of
age has not been admitted in any school or
though admitted, could not complete his or
her elementary education, then, he or she
shall be admitted in a class appropriate to
his or her age:

Provided that where a child is
directly admitted in a class appropriate to
his or her age, then, he or she shall, in order
to be at par with others, have a right to
receive special training, in such manner,
and within such time-limits, as may be
prescribed:

Provided further that a child so
admitted to elementary education shall be
entitled to free education till completion of
elementary education even after fourteen
years."

36. Section 13 of Right to Education
Act, 2009 directs no capitation fee and
provide
for
screening
procedure
for
admission:

"Section 13 No capitation fee and
screening procedure for admission.

(1) No school or person shall,
while admitting a child, collect any
capitation fee and subject the child or his or
her parents or guardian to any screening
procedure.

(2) Any school or person, if in
contravention of the provisions of subsection (1),--

(a) receives capitation fee, shall
be punishable with fine which may extend
to ten times the capitation fee charged;

(b) subjects a child to screening
procedure, shall be punishable with fine
which may extend to twenty-five thousand
rupees for the first contravention and fifty
thousand rupees for each subsequent
contraventions."

37. Section 14 of Right to Education
Act, 2009 mandates that no child shall be
denied admission in school for lack of age
proof:

" Section 14. Proof of age for
admission.

(1) For the purposes of admission
to elementary education, the age of a child
shall be determined on the basis of the birth
certificate issued in accordance with the
provisions of the Births, Deaths and
Marriages Registration Act, 1886 (6 of
1886) or on the basis of such other
document, as may be prescribed.

(2) No child shall be denied
admission in a school for lack of age
proof."

38. Section 15 of Right to Education
Act, 2009 visualizes admission of the child
even after the commencement of the
academic year.

"Section 15. No denial of
admission.

A child shall be admitted in a
school at the commencement of the
academic year or within such extended
period as may be prescribed:

Provided that no child shall be
denied admission if such admission is
sought subsequent to the extended period:

Provided further that any child
admitted after the extended period shall
complete his studies in such manner as may
be
prescribed
by
the
appropriate
Government."

39. The constitutional right guaranteed
under Article 21-A of the Constitution of
India and the right to education vested in
30 INDIAN LAW REPORTS ALLAHABAD SERIES
children by virtue of the Right to Education
Act, 2009 apply with full force to children
who are residing in jail with their inmate
parents. The said children of jail inmates
are fully entitled to quality education as
their
more
fortunately
circumstanced
counterparts. The State Government as well
as local authorities are bound by law to
realize the right to education of the
aforesaid children.

40.